PCRLJ 2025 Judgments

2025 P Cr. L J 955

[Federal Shariat Court]

Before Khadim Hussain M. Shaikh, J

Mst. Sassi Hizbullah---Petitioner

Versus

Junaid Ahmed Khan and another---Respondents

Criminal Revision No. 01-K of 2023, decided on 25th March, 2025.

Penal Code (XLV of 1860)---

----Ss. 500 & 502-A---Defamation---Private complaint---Petitioner filed private complaint against the respondent with the contention that he levelled false allegation of zina upon her---Complaint was dismissed by the Trial Court---Validity---Admittedly, the accusation of zina/illicit terms with "RM" against the petitioner was imputed by the respondent in divorce deed dated 07.06.2020, which he repeatedly made in the pleadings of the suits and family matters, which he also reiterated and reaffirmed in presence of the Court and in public, in union council office, and judicial/non-judicial proceedings, even after severing marital bond with the petitioner and no longer remaining her husband---This prima facie fell within the definition of Qazf and there was no question of applicability of the provisions of S.14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 regarding the li'an in this case---Trial judge very conveniently overlooked such aspects of the case and dismissed the subject complaint, being not maintainable, holding that the respondent, who was the husband of the petitioner, had made the accusation of zina/ illicit relations against the petitioner during subsistence of the marriage, therefore, the provisions of S.14 of the Qazf Ordinance, 1979, were attracted to the case of the petitioner---Petitioner had supported the contents of her complaint by cursory evidence and she had also been supported by the witnesses in their respective cursory statements recorded before the Judicial Magistrate, who after conducting preliminary enquiry under S.202, Cr.P.C, and recording the statements of petitioner's witnesses submitted his enquiry report dated 16.01.2023, in affirmative, which had also been completely ignored by the trial judge while passing the impugned order---Said material brought on the record had to be considered to determine whether a prima facie case was made out or not and no deeper appreciation was required at the initial stage---Impugned order, which was patently illegal, suffered from mis-reading and non-reading of the record and could not be sustained---Criminal revision petition was allowed and the case was remitted back to the Trial Court with the directions to pass an appropriate order based upon the consideration of the complaint and cursory evidence of the petitioner etc. in accordance with the law.

Muhammad Safdar Satti v. Mst. Assia Khatoon 2005 SCMR 507; PLD 1986 F.S.C. 187, Mushtaq Ali v. Noor Muhammad 1989 SCMR 428; Manzoor Hussain v. Zahoor Ahmed 1992 SCMR 1191 and Abdul Ghafoor v. Federation of Pakistan 1992 MLD 2326 rel.

Ms. Fouzia Waheed for Petitioner.

Ali Asghar for Respondent.

Khadim Hussain Khuharo, Additional Prosecutor General, Sindh for the State.

Date of hearing: 14th February, 2025.

Judgment

Khadim Hussain M. Shaikh, J.---By means of the captioned Criminal Revision, the petitioner named above has called in question Order dated 23.02.2023, passed by the learned Additional Sessions Judge-XI, Karachi South, dismissing private complaint No.4114 of 2022 re-Mst. Sassi Hizbullah v. Junaid Ahmad Khan, being not maintainable.

1. Briefly, the facts of the case are that petitioner Mst. Sassi Hizbullah and respondent Junaid Ahmad Khan were married on 10.01.2020 according to Islamic Sharia. The parties lived peacefully for some time and then there arose between them. It is alleged that in the month of March, 2020, the petitioner went to her parent's house for her medical examination by a doctor, whereafter the respondent neither brought her back nor did he allow her to return back to his house; then the respondent divorced the petitioner and sent a written divorce deed dated 07.06.2020, by levelling allegations against the petitioner that "the first party has discovered that the second party has indulged in illicit behavior and has admittedly has affairs and relations out of marriage with a person namely Rafay Maqbool". It is further alleged that at that time the petitioner was five months pregnant, however, on 07.10.2020, a baby boy named Muhammad Hamdan was born. The petitioner had also sent a legal notice dated 15.07.2020 to the respondent asking him to tender apology against such false allegations levelled against her and to pay her all the medical expenses, with the maintenance and her dower and to also return her dowry articles, but with no response. Then the petitioner filed family suit for maintenance, recovery of dower and dowry articles etc and she also filed suit and complaint for defamation. The respondent filed his written statements/objections in the cases wherein he repeated the allegations of zina against the petitioner. Then the respondent submitted the same divorce deed dated 07.06.2020 before the local Union Council and he then submitted application dated 10.11.2020 with his own hand writing before the Union Council office Pelwan Goth, Karachi by leveling the aforesaid allegation against the petitioner, The respondent was allegedly constant in making false allegations of zina against the petitioner in proceedings before various Courts, and on 18.07.2022 he allegedly levelled allegation against the petitioner in open Court before the learned 1st Family Judge, East Karachi by saying that "aap k dusron k sath rishtay thay isliye app ko talaaq hui", the petitioner filed statement before the learned 1st Family Judge, East Karachi about such words used by the respondent, which was kept on record by the learned 1st Family Judge, advising the petitioner to approach proper forum of law. The petitioner has categorically stated that the respondent on number of times orally and in writing before the Courts, in public, offices of Union Council and in the open Court as well as in the chambers of the learned Judges had imputed false allegations of zina/illicit relationship with man named Rafay Maqbool against the petitioner, therefore, the petitioner filed the subject private complaint against the respondent before the learned XIIth Judicial Magistrate, Karachi South, who vide order dated 17.11.2022 sent up the said direct complaint along with relevant documents to the learned District and Sessions Judge South on the ground that the alleged offence of Qazf is exclusively triable by the Sessions Court and ultimately the subject direct complaint was transferred to the Court of learned Additional Sessions Judge-XI Karachi, South (the learned trial Judge).

2. On receiving the said private complaint, the learned trial Judge after recording cursory statement of the petitioner, sent the complaint to the learned XIIth Judicial Magistrate, Karachi-South vide order dated 26.12.2022 for conducting preliminary enquiry under Section 202 Cr.P.C, who after recording the statements of petitioner's witnesses submitted his enquiry report dated 16.01.2023, in affirmative with his view that "I am of considered view that complaint of complainant is genuine and true against respondent, after securitizing contents of statements of complainant and her witnesses, documentary evidences, nature of allegations, material in support of accusation". However, the learned trial Judge vide impugned order dated 23.02.2023 has dismissed the subject private complaint, being not maintainable. The petitioner being aggrieved by and dissatisfied with the said impugned order has preferred the instant Criminal Revision.

3. The learned Advocate for the petitioner has mainly contended that the respondent by leveling false allegations of zina against the petitioner in writing and oral in various matters in the Court proceedings and also before the presiding Judge of Family Court and officials of Union council, harmed the reputation of the petitioner and hurt her feelings, thereby the respondent has committed offence of Qazf; that the learned XIIth Civil Judge/Judicial Magistrate Karachi South after preliminary enquiry submitted his report that the complaint of the complainant is genuine and true against the respondent; that the learned trial Judge has passed the impugned order dismissing the complaint of the petitioner without appreciating the material brought on the record; that the impugned order passed by the learned trial Judge is unjust and illegal, which has caused miscarriage of justice to the petitioner. The learned counsel has prayed that the instant Criminal Revision may be allowed and the impugned order may be set aside and the case may be remanded back to the learned trial Judge for passing fresh orders after appreciating the material brought on the record by the petitioner in accordance with law.

4. The counsel for the respondent has mainly contended that the petitioner has filed various proceedings against the respondent before various Courts; that the learned trial Judge after considering the material brought on the record has rightly dismissed the subject direct complaint filed by the petitioner vide the impugned order; and, that there is no illegality in the impugned order. The learned counsel prays for dismissal of the instant Criminal Revision.

5. The learned Additional Prosecutor General, supporting the version of the petitioner's counsel, has contended that the respondent repeatedly levelled allegations of zina against the petitioner in various proceedings even in presence of the Family Court, when the parties were no longer husband and wife; that the learned trial Judge without considering such aspects of the case has dismissed the subject direct complaint of the petitioner vide impugned order dated 23.02.2023, which per him is illegal and not sustainable. He has also prayed that the case may be remanded back to the learned trial Judge for passing an appropriate order after considering the material brought on the record by the petitioner.

6. Heard the learned counsel for the parties and have gone through the material brought on the record with their assistance.

7. In order to appreciate the contentions of the learned counsel for the parties, it would be essential to reproduce the penultimate paragraph of the impugned order dated 23.02.2023 passed by the learned trial Judge, which reads as follows:-

"5- After hearing the learned counsel for the complainant and carefully scanning the available record, it transpires that the respondent/proposed accused was the husband of the complainant and he made the accusation of Zina/illicit relation against the complainant, during subsistence of the marriage but he had no witness except himself. It further transpires that he also made the accusation of Zina/illicit relation in divorce deed sent to the complainant and he also made the same accusation before learned 3rd Additional District Judge, Karachi East, through his written statement, during the proceeding of suit No.10/2020 filed by the complainant against him, so also he made the same accusation through his written statements, in Family Suit No.1778/2020 and G and W No.450/2021 before 1st Family Judge, East Karachi, so also he made the same accusation against the complainant before U.C. councilor. It also transpire that not only the accusation was made by the respondent/husband against the complainant/wife but he made the same accusation either during subsistence of the marriage or in various judicial/non judicial proceedings conducted in relation to their marriage and therefore, provisions of Section 14 of Qazf Ordinance, 1979, is clearly attracted to the case of the complainant as laid down in the case law reported as Muhammad Safdar Satti v. Mst. Assia Khatoon (2005 SCMR 507), PLD 1986 F.S.C. 187, Mushtaq Ali v. Noor Muhammad (1989 SCMR 428), Manzoor Hussain v. Zahoor Ahmed (1992 SCMR 1191) and Abdul Ghafoor v. Federation of Pakistan (1992 MLD 2326). It appears that in the case law reported in PLD 1986 F.S.C. 187, it is held that for attracting the provisions of section 14 of Qazf Ordinance, 1979, two conditions must be satisfied. First, the accusation is made by the husband during subsistence of the marriage; and second, the husband has no witness except himself, to prove the allegation. It is also held in same case law that for the purpose of conducting li'an (under section 14 of Qazf Ordinance, 1979) proceedings relationship of husband and wife must exist between spouses while lodging a charge of unchestity in li'an against wife or husband. But if marriage between parties has already been dissolved proceeding of li'an under Section 14 of the Ordinance cannot be appropriately taken".

1. From a perusal of the record, it would be seen that the petitioner and the respondent were married on 10.01.2020 according to Islamic Sharia, which had not lost long, as after sometime there arose dispute between the parties and ultimately the respondent had divorced the petitioner vide divorced dated 07.06.2020 wherein the respondent had levelled the allegations of zina against the petitioner as follows:-

the first party has discovered that the second party has indulged in illicit behavior and has admittedly has affairs and relations out of marriage with a person namely Rafay Maqbool.

Vide divorce registration certificate, issued on 05.06.2023, and filed through statement dated 13.02.2025 by the petitioner, the divorce was shown effective from 7th September, 2020, which at the best was effective after the birth of parties' son Muhammad Hamdan on 07.10.2020; the respondent, who by divorcing the petitioner had himself severed his marital bond with the petitioner, imputed zina against the petitioner in his written statements filed in Suit No.10/2020 in the Court of learned 3rd Additional District Judge Karachi, East, in Family Suit No.1778/2020 and G and W No.450/2021 in the learned Courts of Family Judge, and then on 18.07.2022 he also allegedly stated in open Court before the learned 1st Family Judge East Karachi that "aap k dusron k sath rishtay thay isliye app ko talaaq hui", whereupon the petitioner filed the statement for taking action against the respondent, which was kept on record as per Diary Sheet, wherein the learned 1st Family Judge East Karachi allegedly advised her to approach proper forum of law, besides that the respondent allegedly on a number of times orally and in writing in public, office of union council and before the Judges in open Court and in their chambers, has been imposing false allegation of zina/illicit relations against the petitioner.

1. It is worthwhile to mention here that Islam places great emphasis upon the reputation of women in the society and the right of reputation being a sacred right as well preserved by the Holy Quran, which casts a duty on the person against whom a false case of adultery or commission of zina has been brought to bring a direct action of prosecution against the accuser under Qazf under the dictates of the Holy Quran as envisages in Surah Al Noor (24), verse (4), which has stipulated that the accuser of zina must bring four witnesses to prove the allegation or else he would be awarded the punishment of qazf:-

"Those who accuse chaste women [of zina] but do not produce four witnesses, flog them with eighty lashes, and do not admit their testimony ever after; they are indeed rebellious".

2025 P Cr. L J 120

[Gilgit-Baltistan Chief Court]

Before Mushtaq Muhammad and Jahanzeb Khan, JJ

The State through Additional Advocate General Gilgit Baltistan---Petitioner

Versus

Ahmed Hassan---Respondent

Cr. Misc. No. 109 of 2024, decided on 18th May, 2024.

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

----S. 498---Pre-arrest bail---Scope---Relief of pre-arrest bail is only available to an innocent person, who has been involved or dragged in a false case---While granting such exceptional remedy to a person, Court must examine the case with a view to see the correctness or falsity of the case i.e. whether the facts alleged in the FIR do constitute commission of a cognizable offence---There is no legal provision for pre-arrest bail unlike post arrest bail.

Hidayat Ullah Khan v. The Crown PLD 1949 Lah. 21 and Gulshan Ali Solangi v. The State through Prosecutor General Sindh 2020 SCMR 249 rel.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 161, 406, 409, 417, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Cheating, forgery, taking illegal gratification by corrupt or illegal means and criminal misconduct---Pre-arrest bail, cancellation of---Misuse of bail---Accused was charged for committing corruption/embezzlement in the official budget of City Hospital---Record showed that the Trial Court had granted the extraordinary relief to the accused/ respondent in a very ordinary manner---Trial Court had not recorded a single sentence/finding on the points of prima facie case and involvement of the accused/respondent in the present case---Trial Court had also not given a single reason regarding the consequences of arrest of accused/respondent---Record transpired that after a formal inquiry the case had been registered---Accused/respondent was directly charged in the FIR and his role of being the Medical Superintendent of the said Hospital was specifically mentioned therein---Beside the above, the case was one of documentary evidence and verification of the same was required---Prima facie accused/respondent was facing a charge structured upon documentary evidence---Accused/respondent during the days of occurrence was the Medical Superintendent of said Hospital, therefore, question of false implication did not arise---Question of rule of consistency did not arise because the co-accused had joined the investigation and he was later on released by High Court on post arrest bail---Trial Court had blatantly disregarded the established principle for grant of pre-arrest bail and granted exceptional remedy in favour of the accused/respondent on irrelevant grounds and upholding such an illegal order, which was clear example of wrong exercise of jurisdiction, was tantamount to setting a bad judicial precedent---If such kind of decision was not overturned, same would encourage future abuse of jurisdiction---Pre-arrest bail granted in favour of accused was withdrawn, in circumstances.

Saeed Ullah and 2 others v. The State 2023 SCMR 1997; Aurangzeb v. Muhammad Yaqoob 2022 PCr.LJ 1047; Muhammad Saifullah Cheema's Case 2022 PCr.LJ 1327 and Ali Sher v. The State 2005 PCr.LJ 535 ref.

Malik Sherbaz Khan, Additional Advocate General for the State assisted by Muhammad Faqir, Special Prosecutor Anti-Corruption Gilgit.

I.O of the case Abdul Hadi of PS Anti-Corruption Gilgit.

Accused/respondent in person along with counsel Imtiaz Hussain.

Date of hearing: 17th May, 2024.

Judgment

Mushtaq Muhammad, J.---Through the instant application under Section 497 (5) Cr.P.C., the learned Additional Advocate General Gilgit Baltistan (hereinafter called petitioner) has called in question the impugned order dated 02/04/2024 of learned Special Judge Anti-corruption Gilgit (hereinafter called trial court), whereby, the learned trial court has confirmed the ad-interim pre-arrest bail in favour of the accused/ respondent Ahmed Hassan son of Shah Jahan Khan in the case FIR No.05/ 2024 registered at P. S Anti-corruption Jutial Gilgit.

1. The stated charges according to the FIR are the massive corruption/ embezzlement in the official budget of the City hospital Gilgit. On the application of complainant Amanullah son of Dadu, inquiry was conducted and responsibility of the said massive corruption/ embezzlement has been fixed against the present accused/ respondent namely Ahmed Hassan, the then Medical Superintendent, Nadeem Fareed storekeeper of the said hospital and Kamil Jan procurement contractor. On the basis of inquiry report FIR No.05/ 2024 was formally registered on 19/ 02/2024. The concluding paragraph of FIR No.05/ 2024 reveals that it is case of embezzlement in the funds specifically allocated for the poor, needy and destitute patients. Accused/respondent after registration of the case surrendered before Peshawar High Court and obtained anticipatory bail and in the shelter of said protection surrendered before the learned trial court and requested for pre-arrest bail in the said case vide Bail Application No.12/ 2024. After hearing both the parties learned trial court vide the impugned order dated 02-04-2024 has confirmed the pre-arrest bail in favour of accused/ respondent on the grounds that the offences with which accused/ respondent is charged do not fall within the prohibitory clause of Section 497 Cr.P.C, that the accused Nadeem Fareed has been admitted to bail, hence role of consistency attracts in the instant case and lastly that the learned Special Prosecutor and I.O of the case admitted before the trial court that accused/ respondent is co-operating towards the completion of investigation. Felt aggrieved with the impugned order dated 02-04-2024 the State through the Additional Advocate General Gilgit Baltistan has filed this petition.

2. Arguments have been heard on 17/ 05/ 2024. Malik Sherbaz Khan Addl. AG assisted by Mr. Muhammad Faqir Special Prosecutor submitted before the court that accused/ respondent is directly charged in the FIR and he is required for further investigation in the case but the learned trial court has wrongly extended the judicial protection to the accused/ respondent. Learned Addl. AG contested the impugned order dated 02/ 04/2024 on the ground that pre--arrest bail being an extra ordinary remedy has it's own parameters but the learned trial court has granted the extra-ordinary relief in favour of accused/ respondent on altogether different grounds, hence the impugned order 02/ 04/ 2024 is liable to be set aside.

3. On the other hand, Mr. Imtiaz Hussain advocate appearing on behalf of accused/ respondent submitted that this petition filed under Section 497(5) Cr.P.C does not involve a single valid ground for cancellation of bail. He referred the judgment "Saeed Ullah and 2 others v. The State" [2023 SCMR 1997], "Aurangzeb v. Muhammad Yaqoob" [2022 PCr.LJ 1047], "Muhammad Saifullah Cheema's Case" [2022 PCr.LJ 1327] and "Ali Sher v. The State" [2005 PCr.LJ 535]. Learned counsel further submitted that complainant Aman Ullah in his application did not charge the present accused/ respondent and he was subsequently involved by the prosecution. He submitted that FIR has been registered in violation of Section 8 of the Gilgit-Baltistan Anti-Corruption Establishment Act, 2019 and the rules made thereunder. Learned counsel submitted that the I.O and learned Special Prosecutor before the trial court had conceded that accused/ respondent is not required for investigation hence, their subsequent act by filing the instant petition is not justified. Learned counsel prayed that this petition being devoid of merit and illegal may be dismissed.

4. Record perused and deliberated. The relief of pre arrest bail is only available to an innocent person, who has been involved or dragged in a false case. While granting this exceptional remedy, to a person, court must examine the case with a view to see the correctness or falsity of the case i.e., the facts alleged in the FIR do constitute commission of a cognizable offence. There is no legal provision for pre-arrest bail unlike post arrest bail. This exceptional remedy has emerged from the judgment of a full bench of Lahore High Court in the case cited "Hidayat Ullah Khan v. The Crown" (PLD 1949 Lahore Page 21). Relevant portion of the judgment is reproduced here:

"Admission of suspected persons to bail in anti-cipation of arrest-- Power of High Court not only good prima facie ground should be made out but also that arrest would be from ulterior motives or that it would cause irreparable harm"

"In proper case the High Court has power under Section 498 Cr.P.C to make an order that a person who is suspected of an offence for which he may be arrested by a police or a Court, shall be admitted to bail"

"The exercise of the power should however, be confined to cases in which not only is good prima facie ground made out for the grant of bail in respect of the offence alleged but also, it should be shown that if the petitioners were to be arrested and refused bail such an order would, in all probability, be made out from motives of furthering ends of justice in relation to the case, but for some ulterior motives and with the object of injuring the petitioner or that the petitioner would in such eventuality suffer irreparable loss."

It is in the judgment that, the power would require to be exercised with the very greatest care and restricted to exceptional case. Therefore, a court while hearing a petition for pre-arrest bail must consider the following points: -

i. Whether the facts stated in the FIR reveal the commission of a cognizable offence?

ii. Whether the accused appears to be involved in the commission of the offence on a prima facie examination?

iii. Whether the conduct of prosecution is actuated by malice or ulterior motive?

iv. Whether the arrest of the accused would cause him irreparable harm or injury?

In a recent judgment cited "Gulshan Ali Solangi v. The State through Prosecutor General Sindh" (2020 SCMR 249) a division bench of Hon'ble Supreme Court of Pakistan has laid down the principle for grant of pre-arrest bail. Relevant portion is reproduced here for a ready reference:

"Grant of Pre-arrest bail was a remedy rooted into equity, at a cost to hamper investigation...Such judicial protection was extended solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour... Said remedy could not be granted in every run of mill criminal case, particularly to an accused prima facie charges structured upon material/evidence, warranting custody, that too, on the basis of positions/pleas, verification whereof, was consequent upon recording of evidence."

1. Perusal of the impugned order dated 20-04-2024 passed by the learned trial court, we are of the considered view that the learned trial court has granted the extraordinary relief to the accused/ respondent in a very ordinary manner. Learned trial court has not recorded a single sentence/ finding on the points prima facie case and involvement of the accused/ respondent in the instant case. Learned trial court has also not given a single reason regarding the consequences of arrest of accused/ respondent.

It is on record that after a formal inquiry the case has been registered. Accused/ respondent is directly charged in the FIR and his role being the Medical Superintendent of the said Hospital is specifically mentioned therein. Beside the above, the case is one of documentary evidence and verification of the same is required. Prima face accused/ respondent is facing a charge structured upon the documentary evidence.

Accused/ respondent during the days of occurrence was the Medical Superintendent of said Hospital, therefore, question of false implication does not arise. The question of rule of consistency does not arise because the co-accused, Nadeem Farid had joined the investigation and he was later on released by this court on post arrest bail.

2025 P Cr. L J 144

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J

Assadullah and another---Petitioners

Versus

The STATE---Respondent

Criminal Misc. No. 281 of 2023, decided on 30th November, 2023.

Criminal Procedure Code (V of 1898) ---

----S. 265-K ---Application for acquittal not moved by all accused persons---Incomplete challan---Effect---Trial Court rejected application for acquittal moved by the petitioners /accused persons (two in number)---Validity ---Admittedly, challan/ final police report had been submitted in the Court of competent jurisdiction against the accused/petitioners and their absconding co-accused ; and charge against the petitioners had been framed by the Trial Court and trial of accused/ petitioners has commenced---Principal accused and alleged victim/lady had absconded immediately after the occurrence and their names had been disclosed in the column No.2 of incomplete challan---Recovery memo. showed that the vehicle which was used in the occurrence had been recovered from the house of the petitioners/ accused---Usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under S.342, Cr.P.C, if so desired, and hearing final arguments of both the parties---Provisions of Ss.265-K, 249-A & 561-A, Cr.P.C should not normally be pressed into action for deciding the fate of a criminal case---Moreover, the Trial Court is fully competent to apprise analysis and scrutinize the prosecution evidence with a view to find out whether the charge is groundless or that there is no satisfactory and reliable evidence to establish the guilt of the accused---However, in the present case, there were more than one accused, and one of them moved an application under S.265-K Cr.P.C---In such a situation the approach of Court to analyse and apprise the evidence would be different from the one where only one accused is facing trial---In the present case, two accused had not yet been arrested and prosecution had to produce about 20 witnesses to prove allegations against the petitioners/ accused---As such acquittal of accused / petitioners at such stage would definitely prejudice the case of co-accused---Trial Court had rightly rejected application for acquittal, in circumstances---Petition was dismissed, in circumstances.

Burhan Wali for the Petitioners.

DAG Malik Sherbaz for the State.

Manzoor Husain and Shabbir Hussain for the Complainant.

Date of hearing: 28th November, 2023.

Order

Ali Baig, C.J.---The petitioners/accused have filed the instant petition under section 561-A Cr.P.C acquittal of the accused/petitioners in criminal case FIR No. 211/2022 registered under sections 494, 365-B/34, 109, 420, 468, 471, 496-A P.P.C. at Police Station Jutial Gilgit and seek their acquittal from the charges.

1. The facts of the case narrated in the FIR are that complainant namely Ahmed Ali son of Muhammad Ali Akhtar resident of Gulmat Nagar presently at Riaz road Jutial Gilgit has lodged a complaint before the SHO P.S Jutial Gilgit stating therein that he has got married with Mst. Kulsoom daughter of Wahab Ali on 08th March 2022 and on day of occurrence i.e 19-12-2022 she went outside from her house after hearing voice of horn of vehicle and after that she did not return back and complainant searched her but he did not find her outside of the house. The complainant named one Mubashir son of Siraj Uddin resident of Yadgar Mohallah as suspect in the said application submitted to the SHO.

2. After receipt of the complaint the SHO concerned registered the above mentioned FIR and started the investigation of the case, arrested the present petitioners/ accused and their co-accused. After completion of usual investigation the SHO concerned has got committed the present petitioners/ accused to judicial lock-up and submitted incomplete challan of the case against the petitioners/ accused and their co-accused before the competent Court of jurisdiction for trial of accused.

3. It is pertinent to mention here that during proceedings before the learned trial Court the present petitioners / accused had filed an application under section 265-K Cr.P.C before the learned trial Court/ Sessions Judge Gilgit seeking their acquittal in the above mentioned criminal case. The learned District and Sessions Judge, Gilgit after hearing the arguments on behalf of learned counsel for the parties has dismissed the application filed by the present petitioners/accused under section 265-K Cr.P.C vide order dated 30-09-2023 passed in Cr. Misc No. 63/2023.

4. Feeling aggrieved and dissatisfied with the impugned judgment/ order passed by the learned trial Court the petitioners/ accused have preferred the instant petition under section 561-A Cr.P.C before this Court for acquittal of the petitioners/ accused.

5. The learned counsel for the petitioners/accused argued that the petitioners/ accused are innocent and the police have malafidly and falsely involved them in this case. The learned counsel for the petitioners/accused further argued that the petitioners/ accused are not directly nominated in the FIR and no eye-witness is available with the prosecution to connect the accused/ petitioners with the alleged crime. The learned counsel for the petitioners/accused further submitted that the alleged abductees had filed an affidavit before the learned Magistrate Dassu Kohistan stating therein that she has got married with one Mubashir on her own free will and consent and she has not abducted by any person. The learned counsel for the petitioners/accused further submitted that offence under sections 365-B and 494 P.P.C. do not attract to the case of the petitioners/ accused. The learned counsel for the petitioners/accused further submitted that nothing has been recovered from the possession of the petitioner/ accused. The learned counsel for the petitioners/accused further submitted that there is no probability of conviction of accused/ petitioners if full-fledged trial is conducted by the trial Court. The learned counsel for the petitioners/accused lastly submitted that the instant petition be allowed and the accused/ petitioners may be acquitted from the case in the interest of justice.

6. On the other hand, the learned Dy. Advocate General assisted by learned counsel for the complainant controverted the arguments advanced by the learned counsel for the petitioners/accused by contending that the vehicle has been recovered from the house of present petitioners/ accused. The offences with which the accused/petitioners are charged are heinous in nature and petitioners and their co-accused have committed an offence of moral turpitude. The learned Dy. Advocate General and learned counsel for the complainant further contended that accused/petitioners are fully involved in the abduction of weded wife of complainant. The learned Dy. Advocate General and learned counsel for the complainant further submitted that the trial of case has commenced and charge has been framed against the petitioners and the case is fixed for prosecution evidence as such the instant petition at this stage is not maintainable and liable to be dismissed. The learned Dy. Advocate General and learned counsel for the complainant further contended that the petitioners/accused has committed an offence against society and prima facie there are sufficient material on record to connect the petitioners/ accused with the alleged offence, therefore, they are not entitled for acquittal.

2025 P Cr. L J 532

[Giglit-Baltistan Chief Court]

Before Ali Baig CJ and Johar Ali, J

Shabbir Hassan---Appellant

Versus

The State through Fida Ali---Respondent

Criminal Appeal No. 02 along with Criminal Misc. No.07 and Criminal Revision No. 20 of 2023, decided on 10th November, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra-judicial confession---Scope---Accused was charged for committing murder of the deceased by inflicting spade blow---Record showed that the extra-judicial confession was made by the accused before three witnesses---From perusal of cross-examination of the said witnesses, it was revealed that their statements had not been shattered by defence, rather the defence had failed to cross-examine the said witnesses about their presence at the place of occurrence, meaning thereby the statements of said witnesses to that extent had gone unchallenged---Said witnesses were natural witnesses and they had faithfully deposed what they had seen and heard from the accused at the time of occurrence, thus their statements were reliable and confidence inspiring---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the sentence was reduced from life imprisonment to 14 years---Appeal against conviction was dismissed with said modification in sentence.

2018 MLD 1654; 1992 SCMR 1983; 2008 YLR 1725; 2017 SCMR 2036; 2018 YLR 890; 2003 YLR 1369; 2004 PCr.LJ 942; 2009 YLR 621; 2010 YLR 914; PLJ 1996 SC 831; 1985 SCMR 1349; 2015 GBLR 1; 2001 SCMR 1474; 2007 SCMR 518 and 2010 SCMR 55 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Statement of accused recorded under S.342 Cr.P.C---Scope---Accused was charged for committing murder of the deceased by inflicting spade blow---At the time of recording of statement of accused by the Trial Court under S.342, Cr.P.C, the accused had confessed his guilt before the Trial Court in response to a question---From bare reading of reply/statement of the accused, it transpired that the accused had admitted that he had committed murder of the deceased on the pretext of self defence---In that connection it was observed that right of self/private defence could be exercised where reasonable apprehension of danger had arisen from an attempt or threat to life as private defence was a right of protection and not aggression---After committing murder of the deceased, the accused had surrendered himself before the police and he had informed the police regarding the occurrence---Confession and extra-judicial confession of the accused had been corroborated by recovery of weapon of offence, medical evidence, site plan, forensic DNA and serologist analysis report and other documents---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the sentence was reduced from life imprisonment to 14 years---Appeal against conviction was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Quantum of sentence---Scope---Accused was charged for committing murder of the deceased by inflicting spade blow---Record showed that the deceased was at the mercy of the accused at the time of occurrence, but he had not repeated the blow and he himself told the witnesses that he had hit the deceased with a spade and if they could save the life of deceased, they should do it---These were the mitigating circumstances, due to which the sentence awarded to the accused was reduced from life imprisonment to 14 years---Appeal against conviction was dismissed with said modification in sentence.

Basharat Ali Ghazi for Appellant.

Muhammad Zakir, Dy. Advocate General for the State.

Munir Ahmed, Imtiaz Hussain and Mudassir Hassan for the Complainant.

Date of hearing: 10th November, 2023.

Judgment

Ali Baig, C.J.---Through this single consolidated judgment, we intend to dispose-off the above titled Cr. Appeal No. 02/2023 and Cr. Revision No.20/2023 as both are outcome of a single judgment dated 30.05.2023 passed by the learned Sessions Judge, Skardu in Sessions Case No. 25/2021.

1. Through Cr. Appeal No.02/2023 filed under Section 410, Cr.P.C, the appellant/convict namely Shabbir Hussain son of Mehdi has prayed for his acquittal from the charge under section 302, P.P.C., vide FIR No.48/2020 dated 07.07.2020 registered at Police Station City Skardu, by setting aside the impugned judgment dated 30.05.2023 passed by the learned Sessions Judge, Skardu in Sessions Case No. 25/2021, whereby the learned trial Judge has convicted the above named appellant/convict as under:

"26. Thus I hold that accused Shabbir Hussain has committed brutal murder (Qatl-e-amd) of Javed with spade. Despite the deceased was at the mercy of accused and he did not repeat the war and he himself informed the PWs, that if they can save the life of deceased they do it. Moreover, he himself went to Police Station and informed the police regarding occurrence, therefore, while considering his conduct as mitigating circumstances, accused Shabbir Hassan is hereby convicted under section 302(b) P.P.C. and he is sentenced to "LIFE IMPRIONSMENT". He is further directed to pay rupees FIVE LAC (500,000/-) as compensation to the legal heirs of deceased Javed as provided under section 544-A, Cr.P.C. And in case of non-payment of compensation amount it shall be realized as arrears of land revenue. Moreover, in case of default, the convict shall further undergo for a period of 06 months Simple Imprisonment (SI)"

1. Through Criminal Revision No. 20/2023 filed under section 439-A Cr.P.C, the complainant has prayed for enhancement of sentence of the respondent/convict from life imprisonment to death sentence under section 302(a,b) P.P.C.

2. The laconic version of the prosecution is that the complainant namely Fida Ali has submitted a written application before the SHO Police Station City Skardu stating therein that on 07.07.2020 at about 1845 hours, the convict namely Shabbir Hassan has hit the head of the deceased namely Javed with a spade with intention to kill him. Resultantly, the deceased has received grievous injury on his head and the brain of the deceased is also spelt out from skull.

3. On written application of complainant, the Station House Officer of PS City Skardu registered a criminal case vide FIR No. 48/2016 (Exh.PW-10/A) under sections 324, 337-A (v)(vi) P.P.C. against the present appellant/convict. During treatment of the victim namely Javed at PIMS Islamabad, he succumbed to death on 14.07.2020.The Investigating Officer after completion of usual investigation of the case submitted challan under section 173, Cr.P.C in the trial Court against the present appellant/convict to face trial.

4. On receipt of challan under section 173 Cr.P.C, the learned trial Court issued notices to the parties and after procurement of attendance and supplying of requisite documents as required under section 265-C Cr.P.C to the appellant/convict free of cost, framed charge against the appellant/convict for murder of deceased Javed, to which the accused pleaded not guilty and opted to face trial.

5. The prosecution in order to prove its case examined as many as 16 prosecution witnesses and closed its evidence. After closing of evidence by the prosecution, the learned trial Court examined the appellant/convict under section 342 Cr.P.C on 06.09.2022, wherein the appellant/convict professed his innocence, and he opted to record his statement on oath under section 340(2) Cr.P.C and to produce defence witnesses. Accordingly the appellant/convict recorded his statement on oath under section 340(2) Cr.P.C before the trial Court and produced two defence witnesses namely Mst. Maryam Bano and Asif Hussain.

6. On conclusion of trial, the learned trial Court after hearing arguments on behalf of both the parties, convicted the appellant and sentenced him as stated hereinabove, vide impugned judgment dated 30.05.2023.

7. The convict/appellant feeling aggrieved and dissatisfied with the impugned judgment/sentence awarded by the learned trial Court, has filed the instant criminal appeal before this Court for acquittal from the charge under section 302 P.P.C., whereas the complainant has also filed Cr. Revision Petition No. 20/2023 for enhancement of sentence of the appellant/convict from life imprisonment to death sentence under section 302(a,b) P.P.C. before this Court.

8. The learned counsel for the appellant/convict argued that there is no independent eye-witness of the occurrence and the private PWs are close relatives of the deceased as such their evidence is not reliable and trustworthy and the learned trial Court has given undue weightage to their evidence, as such the impugned judgment is not tenable in the eye of law and liable to be set aside. The learned counsel for the appellant/convict further argued that the learned trial Court while passing the impugned judgment has mainly relied on the statement/evidence of so-called eye-witnesses, who have not directly witnessed the occurrence rather their evidence is hearsay, hence the statements of eye-witnesses are highly doubtful and not confidence inspiring. The learned counsel for the appellant/convict further argued that as per Medico Legal report the death of the deceased is not ascertained that the death of the deceased is caused due to blow of spade or not, as such the medical evidence is not in line with prosecution version which creates serious doubts in the case of prosecution. The learned counsel for the appellant/convict further argued that the appellant/convict had recorded his statement on oath under section 340(2) Cr.P.C and also produced reliable defence witness to prove his innocence, but the learned trial Court has totally ignored the statements of DWs, as such the impugned judgment is liable to be set aside. The learned counsel for the appellant/convict further argued that there are fatal material discrepancies in the statements of PWs, hence their statements are not trustworthy in terms of purification of witnesses as mentioned in Qanun-e-Shahadat Order, as such the same cannot be used against the appellant/convict to record conviction for life imprisonment. The learned counsel for the appellant/convict further contended that the alleged occurrence has taken place in day light, and the prosecution has failed to cite any independent witness to prove the guilt of the appellant/convict. The learned counsel for the appellant/convict further argued that all the witnesses are either interested witnesses or police officials and the prosecution version is not supported with even an iota of independent and trustworthy evidence, hence the impugned judgment is not maintainable and liable to be set aside. The learned counsel for the appellant/convict accordingly prayed for acquittal of the appellant/convict from the case/charge by setting aside the impugned judgment of the learned trial Court. The learned counsel for the appellant/convict has relied up the following case laws to strengthen his arguments:

(i) 2018 MLD 1654

(ii) 1992 SCMR 1983

(iii) 2008 YLR 1725

(iv) 2017 SCMR 2036

(v) 2018 YLR 890

(vi) 2003 YLR 1369

(vii) 2004 PCr.LJ 942

(viii) 2009 YLR 621

(ix) 2010 YLR 914

(x) PLJ 1996 SC 831

(xi) 1985 SCMR 1349

(xii) 2015 GBLR 1

1. Conversely, the learned Dy. Advocate General and counsel for the complainant controverted the arguments advanced by the learned counsel for the appellant/convict by contending that the appellant/convict has rightly been convicted by the trial Court as he is directly nominated in the FIR and the prosecution witnesses have charged the appellant/convict with specific role of hitting the head of the deceased with spade, but the quantum of sentence awarded by trial Court is less, which is required to be enhanced. The learned counsel for the complainant and the learned DAG further submitted that the appellant/convict has committed murder of an innocent person in a brutal manner and the ocular account is fully corroborated by the medical evidence and other circumstantial evidence produced by the prosecution, as such the sentence awarded to the appellant/convict is required to be enhanced. The learned Dy. Advocate General and learned counsel for the complainant further contented that all the PWs are trustworthy and apart from their statements, the above corroborative pieces of evidence also connect the accused/respondents with the commission of offence. The learned Dy. Advocate General and learned counsel for the complainant further contended that the prosecution has proved it's case beyond any shadow of doubt, hence the appellant/convict deserves to award capital punishment, which may be awarded by accepting the criminal revision petition of the complainant. The learned DAG and counsel for the complainant have relied upon the following reported judgments of superior Courts in support of their arguments:

(i) 2001 SCMR 1474

(ii) 2007 SCMR 518

(iii) 2010 SCMR 55

(iv) Judgment dated 09.04.2018 passed by the Hon'ble Supreme Appellate Court GB in Cr. Appeal No. 03/2018 in Cr.PLA No. 33/2016

1. We have heard the arguments advanced by the learned counsel for the parties and with their able assistance perused the record of the case minutely.

2. Although no eye-witness has directly witnessed the occurrence. The prosecution's case is mainly based on circumstantial evidence in the shape of extra judicial confession and confession of the appellant/convict at the time of recording/examination of appellant/convict under section 342 Cr.P.C.

3. It is pertinent to mention here that the extra judicial confessions were made by the appellant/convict before PW-2 namely Muhammad Ishaque, PW-4 namely Rehmat Ali and PW-7 namely Muhammad Yousuf. Gist of the depositions of the above named PWs are as under:

PW-2 namely Muhammad Ishaque deposes that after about ten minutes, son of the appellant/convict came to him from the plot (place of occurrence) while he was weeping and told him that a boy had come to plot and he has threatened him to beat him if his father did not pay some money and if he stayed in the plot, he will beat him. Thereafter, appellant/convict Shabbir Hassan and along with his son went towards the plot, while he remained sitting at his own place. After 06/08 minutes, the appellant/convict called him loudly while waving his both hands and also blowing whistles from his mouth, upon this he ran towards the accused/appellant, where the appellant/convict told him that he has hit a person in his plot and told him that if you can save him do it and he further told him that he is going to police station. When he reached in the plot a boy was lying on the ground where he saw a spade stuck in the head of the boy and blood was oozing/coming from the wound, while the handle of spade was in the hand of the appellant/convict when he met him.

PW-4 namely Rehmat Ali deposes that on 07.07.2020 a blasting was taken place in Hargisa area Skardu and smoke was seen in the air, he went there, where PW Yousuf was sitting there and he sitted with him. In the meanwhile, appellant/accused Shabbir Hassan came out from the gate along with a lady and a child was with him. He called him and he went towards him, he told that he has hit a person in the plot as he was misbehaving with his wife. He saw the accused/appellant was carrying a handle of spade in his hand which was slipped out from the spade while spade remained stuck in the skull of the injured/deceased. He further told that if you can save him do it. When he rushed towards the place of occurrence and found that the deceased was lying on the ground and Muhammad Ishaque (PW-2) removed the spade from the head of the victim and shifted the deceased towards road, meanwhile an ambulance reached there and the deceased was shifted to hospital.

PW-7 namely Muhammad Yousuf states that on 07.07.2020 at about .5.00pm, he saw that accused/appellant Shabbir Hassan and his wife were coming out from their plot along with their minor son near to his house at Kushmara Gond Skardu. Wife of the accused/appellant and their son went towards their house while the accused/appellant called him.

PW Ishaque and Rehmat were ahead of him and they asked the accused/appellant for the purpose of calling him. At that time a handle of spade was in his hand and the accused/appellant told them that an unknown person was assaulting his wife to commit rape with her and pushed her on the ground. Accused/appellant further told them that he has hit the said person with a spade rightly and asked them to save the life the deceased if possible, thereafter, the accused/appellant went to police station.

1. From perusal of cross-examination of the above named PWs, it reveals that their statements have not been shattered by defence counsel, rather the defence has failed to cross-examine the PWs about their presence at the place of occurrence, meaning thereby the statements of PWs to this extent has gone unchallenged.

2. The above named PWs are natural witnesses and they have faithfully deposed what they have seen and heard from the appellant/convict at the time of occurrence, thus their statements are reliable and confidence inspiring.

3. Another important aspect of the case is that at the time of recording of statement of appellant/convict by the trial Court under section 342 Cr.P.C, the appellant has confessed his guilt before the trial Court in response to the question No. 18 which is reproduced as under:

" Q.No. 18: Have you anything else to say?

Ans: As the stranger had grabbed my wife with intention to rape her and when I saw the situation. I only try to save the modesty of my wife. I had no animosity with the person. I have only acted in self-defence in order to save my wife of becoming a victim of rape."

Bare reading of aforesaid statement of the appellant/convict, it transpires that he appellant/convict has admitted that he has committed murder of the deceased on the pretext of self defence. In this connection it is observed that right of self/private defence can be exercised where reasonable apprehension of danger had arisen from an attempt or threat to life as private defence is a right of protection and not aggression.

1. It is also pertinent to mention here that after committing murder of the deceased, the appellant/convict has surrendered himself before the police and he has informed the police regarding the occurrence. The confession and extra judicial confession of the appellant/convict is corroborated by the following evidence:

(i) Recovery of weapon of offence

(ii) Medical evidence

(iii) Site plan

(iv) Forensic DNA and Serologist analysis report

(v) Lodging of FIR against the deceased by Mst. Maryam wife of the appellant

2025 P Cr. L J 668

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J

Iqbal Azam---Petitioner

Versus

Muhammad Sher and another---Respondents

Criminal Misc. No. 161 of 2024, decided on 31st October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for cancellation of bail, dismissal of---Pre-arrest bail was allowed to the accused-respondent, which later on was confirmed---Validity---Accused-respondent was charged for issuing a cheque in favour of complainant which was dishonoured when presented before the bank concerned, due to insufficient fund---Perusal of record should that there was five months and twenty days unexplained delay in lodging the FIR---Record showed that there was a bonafide transaction of land between the complainant and accused/respondent as the complainant had sold out one Kanal and five Marlas land to the respondent/accused in consideration of Rs. 85,00,000/- as evident from the sale deed dated 10-01-2021---Out of Rs. 85,00,000/-, Rs. 55,00,000/- had been paid to the complainant by the accused/respondent---Land in question had not yet been transferred in the name of respondent/accused---Thus, the controversy/dispute between the parties was of a civil nature and that controversy could be resolved through filing a civil suit in the Civil Court, hence case of the respondent/accused required further inquiry---Moreover, offence under S.489-F, P.P.C did not fall within the ambit of prohibitory clause of S.497, Cr.P.C, as punishment prescribed for the offence is not beyond three years---Grant of bail in the offences which do not fall within the ambit of prohibitory clause of S.497, Cr.P.C, is a rule and refusal is an exception---Moreover, deeper appreciation of evidence is not permissible in cases of bail or cancellation of bail---Where the Court of competent jurisdiction grants bail to the accused, strong grounds are required for its cancellation---For cancellation of bail, the Court has to see whether the accused after being released on bail is creating hindrance for the complainant party, tampering with the prosecution witnesses, or misusing concession of bail---Perusal of record depicted that all such ingredients were lacking in favour of the complainant---Petition for cancellation of bail being bereft of merit was dismissed, in circumstances.

PLD 2005 Lahore 607 and 2016 PCr.LJ 769 ref.

Tariq Bashir v. The State PLD 1995 Pesh. 3 and 2021 PCr.LJ 502 rel.

Burhan Ali for Petitioner.

Imtiaz Hussain and Ashfaq Alam for Respondent No. 1.

Malik Sherbaz, Dy. Advocate General for the State.

Date of hearing: 29th October, 2024.

Order

Ali Baig, C.J.---The petitioner/complainant has filed the instant petition under section 497(5), Cr.P.C. for cancellation of bail allowed to the present respondent No.1 by the learned Sessions Judge, Gilgit vide order dated 18-05-2024.

1. A brief sketch of the case as per record is that on 03.10.2023 the complainant/present petitioner namely Iqbal Azam filed a written complaint before SHO Police Station Jutial stating therein that in a business transaction the accused/present respondent No.1 had handed over a cheque amounting to Rs.30,00,000/- (thirty lac) of Khushal Bank Jutial Branch Gilgit to him. On presentation of the same before the authorities of concerned bank, the said cheque has been dishonoured due to insufficient balance in the account of the accused and after issuance of a memo returned the said cheque. Accordingly, on written application of complainant, FIR No.191/2023 was registered against the accused/ present respondent No.1 under section 489-F, P.P.C. at Police Station Jutial District Gilgit.

2. It is pertinent to mention here that the present respondent No.1/accused had filed an application under section 498, Cr.P.C. before the learned Sessions Judge, Gilgit for grant of pre-arrest bail. The learned Sessions Judge, Gilgit initially allowed ad-interim pre-arrest bail to the present respondent No.1 and after hearing arguments on behalf of both the parties, the learned Sessions Judge, Gilgit has confirmed the interim pre-arrest bail granted to the present respondent No.1/accused vide judgment/ order dated 18-05-2024.

3. Feeling aggrieved and dissatisfied with the impugned order of the learned Sessions Judge, Gilgit dated 18.05.2024, the Complainant/present petitioner has filed Cr. Misc. No. 161/2024 for cancellation of bail of the accused/present respondent No. 1.

4. The learned counsel for the complainant/present petitioner argued that the accused/respondent has willfully issued the impugned cheque of huge amount and has committed financial murder of the complainant, but the learned Sessions Judge, Gilgit has totally ignored all these facts, hence the order of the learned Sessions Judge, Gilgit is patently illegal and against the facts of the case. The learned counsel for the complainant further argued that the learned Sessions Judge Gilgit has wrongly exercised his discretion in the instant case, hence the bail concession extended to the accused may be recalled. The learned counsel for the complainant further argued that the accused has issued cheque to the petitioner in a business transaction and caused huge loss to the petitioner, hence the accused has committed offence under section 489-F, P.P.C. and learned Sessions Judge, Gilgit has wrongly appreciated the relevant law and has passed the impugned order in a hasty manner. The learned counsel for the complainant further argued that the accused has issued the cheque with mala fide intention, hence the accused is not entitled for concession of bail. The learned counsel for the petitioner further submitted that offence under section 489-F, P.P.C. is non-bailable and is fully attracted to the instant case. The learned counsel for the petitioner further submitted that the accused has misused the concession of bail and has not joined the investigation during investigation of the case, hence, the accused is not entitled for concession of bail, as the bail facility extended to the accused may be recalled and accused be handed over to the police for investigation of the case. In support of his contentions the learned counsel for the petitioner/complainant has relied on judgment of this Court passed in Cr. Misc.07/2024.

5. On the other hand, the learned counsel for the accused/respondent No. l controverted the arguments advanced by the learned counsel for the complainant by contending that exceptional circumstances are required to recall bail facility of an accused once granted by a competent Court of law. The learned counsel for the accused further submitted that in the instant case the learned counsel for the complainant has miserably failed to agitate any single ground of bail cancellation, hence the bail cancellation petition of the complainant is liable to be dismissed. The learned counsel for the accused further contended that there is 5 months and 20 days un-explained delay in lodging of the FIR. The learned counsel for the accused/respondent No.1 further contended that there is old standing business relationship between the parties, hence, no case of offence under section 489-F, P.P.C. is made out against the accused and the learned Sessions Judge has rightly confirmed the interim pre-arrest bail. The learned counsel for the accused/respondent No.1 further submitted that the grounds for cancellation of bail are much different from the grounds of granting of bail and in the instant petition the petitioner has failed to establish the required grounds for cancellation of bail, hence, the instant petition may be dismissed in the interest of justice. The learned counsel for the accused/respondent No.1 has relied upon the judgments of superior Court reported as PLD 2005 Lahore 607, 2016 PCr.LJ 769.

2025 P Cr. L J 1769

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J

Abdul waqar---Petitioner

Versus

The STate---Respondent

Crl. Misc. No. 125 of 2025, decided on 23rd May, 2025.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365-B, 496-A, 494 & 511---Abduction, enticing or taking away or detaining with criminal intent a woman, marrying again during lifetime of husband or wife, attempted rape---Bail, dismissal of---Allegations against the petitioner-accused were that he abducted the wife of complainant with the intention to commit fornication with her---Perusal of record transpired that earlier marriage of the alleged abductee subsisted and she was wedded wife of the complainant of the case and there was no record regarding the divorce effected between the spouses---Said fact had also been admitted by the alleged abductee by appearing before Trial Court that she hated her husband and she had been given into the Nikah of the complainant by her father without her consent and willingness and now she wanted to marry the petitioner/accused---Present petitioner/accused also appeared before the Trial Court and had stated that he would again take the abductee to K-(Kohistan) if he was released on bail---Hence, Nikah over Nikah was not permissible in Islam---Said act of the petitioner/accused did not entitle the petitioner for concession of bail at this stage---Furthermore, the petitioner/accused was directly charged in the FIR with specific role and offence under S.365-(B) P.P.C fell within the ambit of prohibitory clause of S.497 Cr.P.C.---So far as grant of bail to the co-accused of the petitioner/alleged abductee was concerned, she was female/woman therefore, the Trial Court had granted post arrest bail in favour of co-accused of the present petitioner/accused being woman, thus rule of consistency did not apply to the case of the present petitioner/accused---Bail petition was dismissed, in circumstances.

2017 MLD 349; 2002 PCr.LJ 598; 2022 MLD 1078; 2019 MLD 786; 2008 PCr.LJ 1451; 2016 GBLR 127 and 2009 YLR 112 rel.

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

----S. 497---Bail order---Observations of the Court---Scope---Observations made in the bail order are entirely tentative in nature which shall not prejudice the final findings to be recorded by the Trial Court after recording pro and contra evidence.

Umer Hussain and Arif Ullah for Petitioner/assused.

Dy. A.G. Malik Sherbaz for the State.

Fayaz Ahmed for the Complainant.

Date of hearing: 20th May, 2025.

Order

Ali Baig, C.J.---The Petitioner/accused namely Abdul Waqar has filed the instant bail petition under section 497 Cr.P.C for grant of post arrest bail in criminal case bearing FIR No. 07/2025 for offences under sections 365-B, 496-A and 494/511 P.P.C. registered at Police Station City Gahkuch District Ghizer.

1. Brief facts of the case as disclosed in the FIR are that complainant namely Sadat son of Qasim resident of Ghakuch Khari submitted an application before the SHO P.S City Gahkuch District Ghizer regarding missing of his wife Mst. Shahina. The SHO City Gahkuch started inquiry under section 157 Cr.P.C. During inquiry the complainant Sadat submitted a subsequent application by stating therein that his wife has been abducted by one namely Abdul Waqar son of Abdul Qudoos resident of Khili Kohistan presently residing at Sakarkui Gilgit with the intention to commit fornication with her. The complainant also expressed his apprehension that the petitioner/ accused might have married with her/abductee despite existence of her previous Nikah with him/complainant.

2. After receipt of the complaint the SHO concerned has registered the FIR bearing No. 07/2025 and started investigation of the case. The concerned SHO arrested the present petitioner/ accused and co-accused Mst. Shahina. After completion of formal investigation the SHO concerned got committed the present petitioner/ accused to judicial lock-up at Gahkuch Ghizer.

3. The present petitioner/accused had filed an application before the learned District and Sessions Judge, Ghizer for grant of post arrest bail. The learned District and Sessions Judge, Ghizer after hearing arguments on behalf of both the parties, has dismissed the bail petition filed by the present petitioner/accused, vide order dated 07-03-2025 passed in B.A No. 129/2025. Hence, the instant bail petition before this Court.

4. The learned counsel appearing on behalf of the petitioner/accused contended that the petitioner/accused is innocent and he has falsely been implicated in the instant case with mala fide intention by the police in collusion with the complainant. The learned counsel for the petitioner/accused further argued that the instant FIR against the petitioner is fake, false, self-made and fabricated. The learned counsel for the petitioner/ accused further submitted that there is 2 days unexplained delay in lodging of FIR. The learned counsel for the petitioner/ accused further submitted that offences under sections 365-B, and 496-A and B do not attract to the case of the petitioner/accused, while offences under sections 494/511 P.P.C. do not fall within the ambit of prohibitory clause of section 497 Cr.P.C. The learned counsel for the petitioner/accused further submitted that petitioner/accused is juvenile one and challan of the case has not been submitted before the Court of competent jurisdiction so far. The learned counsel for the petitioner/ accused further submitted that co-accused Mst Shahina has been released on bail hence, rule of consistency applies to the case of petitioner/accused. The learned counsel for the petitioner/ accused further submitted that the case of the present petitioner/ accused is required further inquiry. The learned counsel for the petitioner/accused further submitted that the prosecution has failed to connect the present petitioner/ accused with the alleged offences and there is no any independent ocular evidence available on the record against the petitioner/accused and as such serious doubts exist in the present case, hence the case of the petitioner falls within the ambit of further inquiry. The learned counsel for the petitioner/accused has relied on judgments of superior Courts reported as 2017 MLD 349 Lahore 2002 PCr.LJ 598 Lahore, 2022 MLD 1078 Sindh, 2019 MLD 786 G.B Chief Court.

5. On the other hand, the learned DAG and learned counsel for the complainant controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the present accused/ petitioner is directly nominated in the FIR with specific role. The learned DAG and learned counsel for the complainant further contended that section 365(B) P.P.C. falls within the ambit of prohibitory clause of section 497 Cr.P.C. The learned DAG and learned counsel for the complainant further submitted that co-accused of the petitioner Namely Mst. Shahina is wedded wife of complainant. The learned DAG and learned counsel for the complainant further submitted that rule of consistency does not apply to the case of the petitioner/accused as co-accused of the petitioner is female. The learned DAG further submitted that incomplete challan has been submitted in the Court and trial of the case has commenced therefore, the petitioner/accused is not entitled for concession of bail. The learned DAG and learned counsel for the complainant have relied on judgments of superior Courts reported as 2008 PCr.LJ 1451 Lahore, 2016 GBLR 127 Supreme Appellate Court G.B and 2009 YLR 112 Karachi.

6. I have heard the learned counsel for the parties at a considerable length and have minutely gone through the available record with their able assistance.

2025 P Cr. L J 1913

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

Mamor Ali---Petitioner

Versus

The STate through SHO Police Station City Gilgit and another---Respondents

Cr. Misc. No. 62 of 2025, decided on 21st February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent power of Chief Court---Scope---Release of vehicle in favour of petitioner---Petitioner sold out the vehicle being owner of the same to "GH" in consideration of an amount of Rs. 4,50,000/----Said purchaser had issued a cheque amounting Rs. 3,80,000/- in favour of petitioner, which could not be withdrawn due to non-availability of amount in the bank account of "GH"---When the purchaser failed to pay the sale amount, the petitioner took back the custody of the said vehicle---Later one "MH" filed application for the registration of FIR against the petitioner with the claim that he had purchased the said vehicle from "GH" and he was real owner of the vehicle which was stolen by the petitioner---Said application was not entertained by the SHO, for which "MH" filed an application under S.22-A, Cr.P.C, which was allowed---Petitioner filed revision petition against the said order, wherein the Chief Court while disposing off the matter had directed the SHO to trace the real owner of the vehicle in question---Despite the said direction of the Court, SHO failed to comply with the orders of the Court, hence the present petition---Validity---After perusal of the report submitted by the respondent No.1/SHO, it became crystal clear that the petitioner was admittedly owner of the subject car which he sold to one "GH" for sale consideration Rs. 450,000/, for which he had given a bogus cheque to the petitioner which was disowned by the bank due to non-availability of amount in his account and the sale amount had not been paid to the petitioner till date---Without payment of the sale price to the petitioner, further transactions of the subject car as owner was illegal and based on mala fide, as such all the subsequent transaction shall be void---SHO, in his report, himself stated that the "GH" had not paid the sale amount to the petitioner and the bogus cheque issued by the "GH" was dishonored by the bank, but neither any proceedings had been initiated against the "GH" nor he had been investigated in that regard---When the SHO was confronted with the contents of his report, he could not justify the Court for this inefficiency---During the course of proceedings it was brought on record that the said "GH" who was serving in the police department as FC Driver was habitual offender known as a thug, and he had not defrauded only the petitioner but also cheated many other gentle people of the area---In view of the facts brought on record during the proceedings of instant matter, it became crystal clear that the conduct of concerned Police Officials dealing with the present matter was totally based on mala fide---Vehicle in question was taken from the custody of the petitioner by two persons who were personel of CTD Police---All the efforts made by the concerned Police Official who conducted the investigation in the instant matter were intended to protect and benefit "GH" who was also a police official and deprived a poor person/petitioner from his right---Intentional inefficiency and negligence of the police officials in proper conduct of proceedings of the case should have been inquired and responsible officials should have been dealt with iron hand after proper inquiry---DIG Police was directed to appoint a honest officer of SP rank in the matter for conducting proper inquiry---Said DIG was also directed to confirm that the impugned vehicle was not stolen, by utilizing the modern facilities i.e. Anti Car Lifting Authority's web site, and other applications/means which were available with the police and Excise and Taxation Departments for tracing the stolen vehicles---If it was found that the subject vehicle was not stolen then it shall be handed over to the petitioner who was according to the existing record owner of subject vehicle---Petition was disposed.

Tariq Shah for Petitioner.

Malik Sherbaz Khan, A.A.G for the State/Respondent No. 1.

Shabir Hussain, Usman Ghani and Mudassir Hassan for Respondent No. 2.

Mirza Hassan, DIG Gilgit Division present in person.

SIP Ghulam Muhi-ud-Din present in person.

Date of hearing: 21st February, 2025.

Order

Raja Shakeel Ahmad, J.---Through the instant petition filed under section 561-A, Cr.P.C the petitioner is seeking compliance of order; dated 18/01/2025 passed by this Court in Cr. Revision No. 01/2025 and release of vehicle in question in favour of the petitioner, with the following prayer:-

It is therefore, very humbly prayed, by accepting the instant implementation petition, this Honorable Court may graciously be pleased to direct the respondent No.1 to implement the judgment/order dated 18/01/2025 passed by this Hon'ble Court in Cr. Revision No. 01/2025, in true letter and spirit by releasing/handing over the aforesaid vehicle in favor of petitioner and respondent NO. 1 may further be directed to submit compliance report before this Hon'ble Court to meet the ends of justice, law and equity.

Any other relief which this Hon'ble Court may deems fit may also be granted in fovour of petitioner.

1. Precise facts of the case as per narration of the petitioner are that the petitioner is bona fide purchaser/real owner of the vehicle Saloon bearing Engine No. 3899558, Chassis No. CE110-5008063, Model 1996 as per sale deed/agreement dated 27/01/2022. As per the said deed/agreement the petitioner purchased the vehicle in consideration of an amount of Rs. 350,000/- (Three hundred and fifty thousand rupees) from one namely Ubaid Ur Rehman son of Noor ul Haq resident of Jagir Baseen Tehsil and District Gilgit. Thereafter the petitioner sold-out the same to one namely Ghulam Hussain son of Sher Muhammad resident of Jalalabad Tehsil Danyore District Gilgit, (serving as FC in police department GP posted as police line Konodas Gilgit), vide sale deed dated 23/10/2024 in consideration of an amount of Rs. 450,000/- (Four lac and fifty thousand rupees) and as per the said sale deed agreement the purchaser was bound to pay the fixed amount in favour of petitioner till 05/12/2024. For payment of the amount the purchaser Ghulam Hussain had issued a cheque amounting Rs. 380000/ (Three Lac Eighty Thousands) in favour of the petitioner Mamor Ali, which couldn't be withdrawn due to non availability of amount in the bank account of Mr. Gulam Hussain (Purchaser) on the due date. When the purchaser failed to pay the sale amount on due date as per terms of agreement dated 23/10/2024, the petitioner took back the custody of the vehicle in question on 13/12/2024. After taking possession of the vehicle by the petitioner the respondent No.2 Mr. Mohammad Hussain son of Shaba Ali resident of Chalt District Nagar Filed Application before SHO, PS City Gilgit, for registration of FIR against the petitioner with the claim that he had purchased the subject vehicle from Ghulam Hussain and he is real owner of subject vehicle which is stolen by the petitioner as such criminal proceedings be initiated against him. His application was not entertained by the SHO PS City Gilgit, for which he filed an application under section 22-A Cr.P.C before the Session Judge/Justice of Peace Gilgit, for direction to the SHO to register FIR against the petitioner, which was allowed vide order dated 11/01/2025 and the SHO P.S City was directed to register a criminal case in the light of application filed by the respondent No.2 Mr. Mohammad Hussain. Feeling aggrieved from the order of Justice of Peace the present petitioner through Criminal Revision Petitioner No. 01/2025 under section 439 read with section 561-A Cr.P.C assailed the vires of the impugned order dated 11/01/2025 before this Court, wherein this Hon'ble Court while disposing off the matter vide order dated 18/01/2025, had directed the respondent No.1 to trace the real owner of the vehicle in question. The operative part of the said order is reproduced hereunder:

"Concluding the matter it is ordered that SHO P.S City Gilgit can liberally inquire into the matter and can impound the vehicle in question. SHO PS City is directed to trace the real owner of the vehicle vide Chassis No. CE-110-5008063, Model 1996 by seeking help from the NADRA authority and the Anti-Car Lifting Authority Punjab."

Despite the above clear cut direction of this Court the respondent No.1 failed to comply with the orders of this court despite laps of considerable time, hence the instant application for directions to compliance of order dated 18/01/2025 passed by this Court in Cr. Misc No. 1/2025.

1. On 13/02/2025 while admitting the petition for regular hearing and notice to the parties the SHO, P.S City Gilgit was directed to appear in person and appraise the Court regarding the proceedings taken in the Compliance of order passed in Cr. Misc. No. 1/2025 dated 18/01/2025, on 17/02/2025 the SHO appeared before this Court without any report as such the same directions were again repeated to him to submit report, regarding the order under implementation and the case was posted to 19/02/2025 for compliance, on the this date the respondent No. 1 (SHO City P.S Gilgit) appeared with a written report wherein he states that, on 17/12/2024 the respondent No. 2 had submitted an application to him alleging therein that, his vehicle bearing Chassis No. CE-110-5008063, Engine No. 1975 CC, Model 1996. Has been stolen from RCC bridge Gari Bagh Gilgit, which was not adhered with for which the respondent No. 2 filed application under 22-A Cr.P.C before the Session Judge Gilgit which was allowed and accordingly on 03/02/2025 The FIR has been lodged and the investigation of the case is assigned to SIP Mohammad Hussain and the subject Car is taken into police Custody. It is also stated in the report the Excise Department GB has endorsed that the Car in question in NCP and according to E Police Verification App the subject Car in not stolen one. It is also categorically mentioned in the report submitted by the SHO P.S City Gilgit that, during investigation it has been revealed that the petitioner had sold the subject car to one Ghulam Hussain son of Sher Mohammad resident of Jalal Abad and in lieu of sale amount had given a Cheque which has been dishonored, however after executing the sale deed with the petitioner the said Ghulam Hussain had sold the same to the respondent No. 2 Mr. Mohammad Hussain in consideration of sale amount Rs. 3,80,000/ At the end of the report the SHO/Respondent No.1 have given his opinion that instead of initiating the legal proceedings against the said Ghulam Hussain regarding giving bogus Cheque have stolen the car of the respondent No.2.

2. After perusal of the report supra submitted by the respondent No.1/SHO P.S. City, it become clysters clear that, the petitioners was admittedly owner of the subject car which he sold to one Mr. Ghulam Hussain for sale consideration Rs. 450,000/, for which he had given a bogus Cheque to the petitioner which was disowned by the bank due to non availability of amount in his account, and the sale amount has not been paid to the petitioner till to date. Now the question arise, "whether without payment of sale amount/price of car, the Ghulam Hussain could be legally declared as owner of the subject car and whether without being legal owner he can further sale the subject car posing himself as owner"? The answer is No, meaning thereby that without payment of the sale price to the petitioner, his further transactions of the subject car as owner was illegal and based on mala fide, as such all the subsequent transaction shall be void. It is astonishing to mention here that the SHO, in his report himself states that, the Ghulam Hussain has not paid the sale amount to the petitioner and the bogus cheque issued by the Ghulam Hussain was dishonored by the bank, but for my surprise neither any proceedings have been initiated against the Ghulam Hussain nor he has been investigated in this regard. When the SHO was confronted with the contents of his report, he cannot justify the Court, for this inefficiency as such he was directed to produce the Ghulam Hussain son of Sher Mohammad resident of Jalalabad in Court on next date of hearing and case was posted to 19/02/2025 for further proceedings.

3. On the above fixed date instead of producing said Ghulam Hussain in compliance of order of this Court, the Respondent No. 1/SHO P.S City came forward with attested copies of two Police Diaries/Roznamcaha, one maintained in the District Police Line Gilgit dated 12/12/2024 wherein, on the report of SIP/LO Tota Khan it has been brought on the daily diary that the FCD Ghulam Hussain is absent from his duty since 20/12/2024, and the second copy of police diary relates to Police Station Jutial dated 12/01/2025 recorded on the basis of application of Murtaza Ali son of Ghulam Hussain resident of Childish Dass Nomal Gilgit stating therein that his father Ghulam Hussain serving in Police Department had gone on his duty on 10/01/2025 and did not return. In the night of 11/01/2025 at 11:00 p.m. made a call to younger brother Haider Ali and told that he is in the house of Niat Khan of Bulachi at Sakwar Khari and intended to commit suicide and cut off the call. Since then he is missing. During the course of proceedings it is also brought on my notice that the said Ghulam Hussain who is serving in the police department as FC Driver is habitual offender known as a thug, he had not defrauded only the petitioner but also cheated many other gentle people of the area.

2025 P Cr. L J 712

[High Court (AJ&K)]

Before Sardar Liaqat Hussain and Sardar Muhammad Ejaz Khan, JJ

Saqib Hussain Kiani and another---Apellants

Versus

The State through Advocate General, Azad Jammu and Kashmir, Muzaffarabad and another---Respondents

Criminal Appeal No. 107 and Murder Reference No. 106 of 2019, decided on 26th December, 2024.

Azad Penal Code (XLV of 1860)---

----Ss. 302(b), 342, 147, 148 & 149---Arms Act (XIII of 1965), S.15(2)---Qatl-i-amd, wrongful confinement, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Secondary evidence---Scope---Autopsy of deceased was conducted by Medical Officer, who also medically examined the accused---Other accused was medically examined by another Medical Officer---Said Medical Officers did not appear before the Court for recording their evidence---Application for producing secondary evidence related to such Medical Officers was allowed---Validity---According to the report of process server, said Medical Officers were reported to have not been found in the given address---Thus, Head Clerk, THQ Hospital was summoned for recording his statement as secondary evidence---It was evident from the record that the Trial Court had neither adopted the procedure as provided under Chapter-VI of Cr.P.C. for summoning of said witnesses nor any valid reasons whatsoever had been explained that under what circumstances the said witnesses could not appear before the Trial Court---Trial Court allowed the application simply on the report of process server wherein said witnesses were reported to have not been found on the given addresses---If it was assumed that the said witnesses left the job from their assignments even then it could not be held without ascertaining that there would be no chance to bring them into the witness box for recording their evidence or the said witnesses were out of reach---Trial Court had failed to exercise its powers as provided under Chapter-VI of Cr.P.C. pertaining to summoning of said pivotal witnesses---Furthermore, the Trial Court allowed the application for producing secondary evidence without observing the codal provisions of law, thus the impugned judgment was not maintainable on such ground alone---Appeal was allowed by setting aside the impugned judgment and the case was remanded to decide the matter afresh accordingly.

A.A.G. for the Petitioner/respondent.

Syed Atif Musthaq Gillani and Kh. Arshad, for convict-Appellants.

Syed Wasif Gardazai for legal heirs of deceased.

Judgment

Sardar Muhammad Ejaz Khan, J.---The captioned murder reference has been sent for confirmation of death sentence awarded to the convict-Saqib Hussain Kiani by the learned District Court of Criminal Jurisdiction, Haveli/Kahuta vide judgment dated 28.11.2019 whereas an appeal has been filed on behalf convict-appellants for setting-aside the aforesaid judgment while acquitting them of the charge. The convict-appellant, Saqib Hussain Kiani was convicted and awarded sentence in the following manner:-

i) Under Section 302(ii) APC death sentence as Tazir;

ii) under Section 458 APC 07 years rigorous imprisonment;

iii) Under Section 342 APC 01 year simple imprisonment;

iv) Under Section 15(2) AO four years rigorous imprisonment and fine of Rs.50,000/ -, in default of payment of fine, he shall further undergo 06 months simple imprisonment;

v) Under Section 544-A, Cr.P. C., he shall pay the compensation amount of Rs.5,00,000/- to legal heirs of deceased, in default of payment of compensation, he shall further undergo 06 months simple imprisonment while he was extended the benefit of Section 382-B, Cr.P. C.;

Whereas, convict-appellant, Said Akbar Khan, was convicted and awarded sentence:-

i) Under Section 458 APC 02 years simple imprisonment and fine of Rs.20,000/-, in default of payment of fine, he shall further undergo 02 months simple imprisonment;

ii) Under Section 342 APC 06 months simple imprisonment by extending the benefit of Section 382-B, Cr.P.C.

Whereas, the other accused Faiz Akbar Khan, Mst. Ulfat Begum, Mst. Parveen Akhtar, Mst. Safdar Jan, Muhammad Shakeel Kiani, Qadeer Kiani and Sajjad Ahmed Kiani were acquitted of the charge by extending the benefit of doubt.

1. As common questions of facts and law are involved in the cases in hand, hence, the same were consolidated and are being decided through this single judgment.

2. Facts of the prosecution case as it glean from the FIR need not to be reiterated here for the sake of brevity because the same have sufficiently incorporated in the impugned judgment dated 28.11.2018. Suffice it to observe that on the instigation of complainant, Ghulam Nabi, a case illat No.55 of 2017 was lodged in offences under Sections 302/342, 147/148, 149, A.P.C. against the convict-appellants and others at Police Station Kahuta on 04.07.2017 and during investigation Sections 15(2) A.O, 458 APC were further added. After completion of investigation, the investigating agency submitted a report under Section 173 of Cr.P.C. before the learned District Court of Criminal Jurisdiction, Haveli/Kahuta, on 07.08.2017. The learned trial Court after usual proceedings concluded the matter and convicted and awarded sentence to the convict-appellants as mentioned in pre-paras vide impugned judgment dated 28.11.2019 and the murder reference was sent by the learned District Court of Criminal Jurisdiction, Haveli/Kahuta, for confirmation of death sentence awarded to the convict-Saqib Hussain Kiani, which is the subject-matter of murder reference and appeal.

3. Heard. Record perused.

4. The learned counsel for the convict-appellants raised objection that the learned trial Court has failed to observe the relevant provisions of law while allowing the application for producing secondary evidence while the evidence of P.W-20 has its vital importance in the case in hand in view of circumstances of the case and the learned trial Court without inviting objections from the other side accepted the said application, which is violation of Codal provisions of law, hence, the impugned judgment is not sustainable in the eye of law. When this situation was confronted to the learned A.A.G. and the learned counsel representing legal heirs of deceased, they have not opposed the objections raised by the learned counsel for the appellants.

5. It is apparent on the face of record that an autopsy of dead body the deceased, Afshan, was conducted by P.W-20 and convict-Said Akbar Khan was also medically examined by Dr. Nasir Munir CMO THQ Hospital Kahuta (P.W-20) while the convict-appellant, Saqib Hussain Kiani, was medically examined by Dr. Gohar Nazir CMO THQ Hospital Kahuta (P.W-21). During trial proceedings, P.W-20 was summoned for recording evidence vide order dated 06.03.2019 on which he has been reported that he left his assignment while it was ordered to furnish a fresh address of the said witness and a notice was issued to P.W-21 for the purpose vide order dated 20.03.2019 and on 28.03.2019 none of them has turned up then they were again summoned. On next date i.e. 10.04.2019, P.Ws 20 to 22 were again summoned and the case was posted to 23.01.2019 on which according to the report of process server, P.Ws 20 and 21 were reported to have not been found in the given address whereupon PP filed an application for producing secondary evidence and the learned trial Court without obtaining objections from the other side on the aforesaid application allowed the same on which Muhammad Khalid head clerk THQ Hospital was summoned and the case was posted to 07.05.2019 and on that date Muhammad Khalid Senior Clerk appeared before the Court and got recorded his statement as secondary evidence.

6. The contents of documents may be proved either by primary or by secondary evidence as provided under Article 72 of The Qanun-e-Shahadat, Order 1984. A document must be proved by primary evidence except in the conditions mentioned in Article 76 of Order Ibid. The point is yet to be determined that whether the learned trial Court was justified to allow the application for producing secondary evidence on the report of process server in which Dr. Nasir Munir CMO THQ Hospital Kahuta (P.W-20) and Dr. Gohar Nazir CMO THQ Hospital Kahuta (P.W21)- were alleged to have not been found on the given address. For proper appreciation of the matter, the Article 76 of The Qanun-e-Shahadat, Order 1984 is usefully reproduced as under:-

"76. Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--

(a) when the original is shown or appears to be in the possession or power of the person against when the document is sought to be proved, or of any person out of reach of, or not subject to, this process of the Court, or of any person legally bound to produce to and when, after the notice mentioned in Article 77 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it if proved or by his representative in interest;

(c) when the original as been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reasons not arising from his own default or neglect, produce it in reasonable time;

(d) when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other moderns devices;

(e) when the original is of such a nature as not to be easily movable;

(f) when the original is a public document within the meaning of Article 85;

(g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;

(h) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;

(i) when an original documents forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible a secondary evidence.

In case (a), (c), (d) and (e), any secondary evidence of the contents of the document as admissible.

In case (b), the written admission is admissible.

In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.

2025 P Cr. L J 1473

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan and Chaudhary Khalid Rasheed, JJ

Hammad Qayyum---Appellant

Versus

The State through Advocate General of Azad Jammu and Kashmir

and another---Respondents

Criminal Appeal No. 126 of 2022, decided on 25th April, 2025.

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

----S. 377---Un-natural offence---Solitary statement of victim---Scope---Accused could be convicted under S.377 of Azad Penal Code on solitary statement of victim if it rang true and was supported by medical evidence.

1999 YLR 2305; 1988 PCr.LJ 1925; 1989 SCMR 418; 1993 PCr.LJ 2076; 1996 PCr.LJ 358; 1999 PCr.LJ 1939; 1997 PCr.LJ 1107; 1989 PCr.LJ 1220 and PLJ 2011 FSC 115 ref.

2001 PCr.LJ 503; 2012 PCr.LJ 1200 and PCr.LJ 699 rel.

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

----S. 377---Un-natural offence---Appreciation of evidence--Ocular account supported by medical evidence---Accused was charged for committing unnatural offence forcibly with the minor son of complainant---In the instant case, complainant, who was father of victim, also got his statement recorded and corroborated the version narrated in FIR---12 witnesses also appeared in witness box and endorsed the prosecution version sine any blemish---Medical Officers also got recorded their statements and sanctioned the contents of the medical reports prepared by them, hence the statements of the Medical Officers who examined the victim also corroborated the prosecution version---Defense failed to impeach the trustworthiness of witnesses or untangled anything injurious to the stance of the prosecution---Appeal against conviction was dropped in circumstances.

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

----S. 377---Un-natural offence---Appreciation of evidence---Recovery of blood stained trouser---Scope---Accused was charged for committing unnatural offence forcibly with the minor son of complainant---Blood stained trouser of victim was recovered in presence of two witnesses---Both the recovery witnesses recorded their statements and supported the recovery memo through un-impeached testimony---Trousers of victim was reported to be stained with human blood by Chemical Examiner, hence prosecution story was further strengthened by recovery memos---Prosecution had entirely substantiated the guilt of accused to the hilt sine any reasonable doubt---Appeal against conviction was dropped in circumstances.

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

----S. 377---Un-natural offence, proof of---Simple penetration is sufficient to constitute un-natural offence and ejaculation is not necessary.

2007 SCMR 698 and PLJ 2003 Cr.C Lahore 852 rel.

(e) Criminal trial---

----Related witnesses, evidence of ---Scope---Related witness is as much competent witness as any other and can only be disbelieved if got a substantial motive to implicate the accused in a false case.

2023 SCR 1172 and 2012 PCr.LJ 1200 rel.

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

----S. 377---Un-natural offence---Appreciation of evidence---Minor contradictions in the statement of victim---Scope---Accused was charged for committing unnatural offence forcibly with the minor son of complainant---In the present case, minor discrepancies regarding time of telling story by the victim to his father, the time of coming back or time of last seen evidence were ignorable because the same did not go to the roots of the case rather were natural---Appeal against conviction was dropped in circumstances.

Raja Zaigham Iftikhar for Appellant.

Syed Zulqarnian Raza Naqvi for the Complainant.

A.A.G. for the State.

Date of hearing: 23rd April, 2025.

Judgment

Chaudhary Khalid Rasheed, J.---The captioned appeal has been preferred against the judgment dated 13.09.2022 passed by learned Additional Sessions Judge Kotli whereby, appellant has been convicted under section 377-A(i)-APC by awarded life imprisonment along with fine of Rs.20,00,000/-.

Facts of the case which culminated into the captioned appeal briefly stated are, Aizaz Yousuf son of Muhammad Yousuf complainant filed a written application Exh.PA at Police Station Charhoi on 22.05.2021 alleged therein that he is a resident of Keeri, on 22.05.2021 his son Hamza aged 8 years at 5:15 pm went to graze goats in the jungle at some distance from home. At 6:15 pm, his son came back while weeping, when asked, he told that accused Hammad forcibly committed unnatural offence with him. The condition of victim was not good and his trouser was blood stained.

On this report FIR. No.74/2021 Exh.PB was registered at Police Station Charhoi in offence under section 377-A(i)-APC on 22.05.2021. After formal investigation, police submitted challan before the Court of competent jurisdiction. The charge was framed under section 265/D Cr.P.C. qua accused claimed innocence whereupon, prosecution was directed to lead evidence in order to prove the guilt of the accused. Upon completion of prosecution evidence, statement of accused recorded under section 342 Cr.P.C. on 07.09.2022. The accused again pleaded innocence but opted neither to produce evidence in defence nor to record his statement under section 340(2) Cr.P.C. At the conclusion of trial, the learned Court below after hearing pro and contra convicted accused by sentenced him as mentioned in the preceding paragraph, hence the captioned appeal.

STANCE OF THE APPELLANT:

The learned counsel for the convict/appellant while referring to the statements of prosecution witnesses vehemently contended that the prosecution witnesses are not unanimous on the time of occurrence. He contended that victim stated in his court statement that after giving report of the occurrence to the police he straight away went home, eat meal and go to bed, thus he denied his medical checkup. The learned advocate further submitted that the victim further deposed that accused did not put off his clothes, hence the ingredients of sodomy are not established, whereas the recovery of blood stained trousers of the victim is shrouded in mystery and all the prosecution witnesses are close relative to the victim, hence their evidence cannot be relied upon for conviction. He finally pressed into service that prosecution has miserably failed to prove its case beyond shadow of reasonable doubt, therefore the accused was entitled to be acquitted of the charges. The learned advocate placed reliance on the following case laws:-

1. 1999 YLR 2305;

2. 1988 PCr.LJ 1925;

3. 1989 SCMR 418;

4. 1993 PCr.LJ 2076;

5. 1996 PCr.LJ 358;

6. 1999 PCr.LJ 1939;

7. 1997 PCr.LJ 1107;

8. 1989 PCr.LJ 1220;

9. PLJ 2011 FSC 115.

REFUTATION OF THE RESPONDENTS:

The learned counsel for the complainant supported the impugned judgment by submitted that prosecution has successfully proved the guilt of accused to the hilt by producing cogent, reliable and confidence inspiring evidence hence, Court below has rightly convicted in consonance with the spirit of relevant law. He further argued that for conviction of an accused in an offence under section 377(A-1)-APC, even a solitary statement of victim, if supported by medical evidence, is sufficient and in the instant case, victim fully endorsed the version taken in FIR, hence requested for the dismissal of appeal as carries no water to hold.

The learned AAG adopted the arguments advanced by the learned counsel for the complainant by solicited that prosecution version has been amply substantiated in a legal fashion, thus the conviction order recorded by the Court below entails to be sustained.

We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

A perusal of record reveals that complainant submitted his report on 22.05.2021 at Police Station Charhoi that accused Hammad Qayyum has committed sodomy with his son Hamza aged 8 years on 22.05.2021 when he went to graze his goats in a nearby jungle. Prosecution in order to prove its stance got recorded the statement of victim Hamza. Hamza deposed in his court statement that on the day of occurrence he went to graze goats, accused committed sodomy with him and when blood oozed, the accused warned not to share the occurrence at home otherwise he will face the severe consequence thereafter the accused person fled away. The victim at the time of recording his statement on 30.06.2022 was ten years of age but defence despite lengthy cross-examination failed to shake his credibility or to extricate anything divergent to the prosecution version, he also deposed during cross-examination that the clothes wearing at the time of occurrence were changed before going to bed and did not wear in the morning. The statement of victim appears to be true, natural and confidence inspiring. Medical evidence fully supported the statement of the victim and it is opined by the Doctor as under:

"Per anal bruise is seen with blood stained anus and shalwar of master Hamza (patient). A large hematoma is visible at 11'o'clock position. Three anal swabs are taken and sent to DHQ Hospital Kotli. On initial examination it can be said that sexual act has been taken place in the duration of 01 to 03 hrs time approximately."

The above-reproduced report of a doctor makes it blatantly obvious that victim met through the episode of sodomy. As per report, Exh.PE/2, the accused was a well built adult man, having well developed secondary sex characters and was found potent for sexual activity of any kind including sodomy. It is a trite law that an accused can be convicted under section 377-APC on solitary statement of victim if it rings true and is supported by medical report. Reliance in this regard may be placed on 2001 PCr.LJ 503, wherein it has been held has under:

"In cases of Zina and sodomy, there are generally hardly any witnesses other than the victim, as it is very rare that such offence takes place in view of others or at public place. That is why, the Superior Courts in this country have attached great sanctity to the statement of the victim and it has been repeated laid down that sole testimony of the victim would be sufficient to base conviction thereon if it inspires confidence."

The same view has been taken in 2012 PCr.LJ 1200, 1999 PCr.LJ 699 and 2004 PCr.LJ 1039.

In the instant case, complainant, who is father of victim, also got his statement recorded and corroborated the version narrated in FIR. Aizaz Yousuf, Muhammad Asif, Muhammad Taimoor, Habib-ur-Rehman, Tariq Mehmood, Muhammad Yousuf, Aftab Hussain, Waheed Iqbal, Abid Hussain, Syed Abbas Ali Shah, Sadaqat Hussain and Chaudhary Shahzad Masood also appeared in the witness box and endorsed the prosecution version sine any blemish. Dr. Imran Asif and Dr. Ahmed Zaka Subhani also got recorded their Court statements and sanctioned the contents of the medical reports prepared by them, hence the statements of doctors who examined the victim also corroborated and reinforced the prosecution version. Defence miserably failed to impeach their trustworthiness or untangle anything injurious to the stance of the prosecution.

Vide Exh.PA/1, blood stained trouser of victim was recovered on 23.05.2021 in presence of Haji Muhammad Yousuf and Waheed Iqbal. Both the recovery witnesses recorded their statements and supported the recovery memo through an un-impeached testimony. As per Exh.PO, trousers of victim was reported to be stained with human blood by chemical examiner, hence prosecution story is further strengthened by recovery memos. We are of the view that prosecution has entirely substantiated the guilt of accused to the hilt sine any reasonable doubt, Court below has appreciated the prosecution evidence in its true spirit and perspective in consonance with the command of the relevant law. No perversity, anomaly, legal infirmity or any flaw in appreciation of evidence has been found in the ratio decidendi recorded by the Court below, hence the instant appeal entails to show the doors.

Under section 377-(A-1)-APC, whoever commits rape or unnatural offence with a minor shall be punished with death or imprisonment of life or castration along with imprisonment which may extend to ten years and fine. For commission of offence under section 377 or 377-(A-1)-APC the followings are essential ingredients:

i. that the accused had carnal intercourse against the order of nature;

ii. that such an intercourse was with any man, woman or animal; and

iii. that accused did so voluntarily.

The offence of sodomy under section 377/337-A1-APC is complete when there is an act of carnal intercourse against the order of nature with any man, woman or animal, hence simple penetration is sufficient to constitute said offence and the ejaculation is not necessary. Reliance may be placed on 2007 SCMR 698 and PLJ 2003 Cr.C. Lahore 852, so the argument advanced by the learned counsel for the appellant that no semen was found on the body of the victim, hence the offence of sodomy has not been attracted has no plausible substance, thus repelled.

It is also an admitted position that the accused at the time of commission of offence was below the age of 18 years, hence the award of lesser punishment by the Court below on the ground that the accused is of young age and being first offender is justified. In this regard reliance may be placed on 1986 SCMR 533, wherein at page 536, it has been observed as under:

"Taking the same factors in view i.e. the young age of the convict and his being the first offender, the sentence was reduced for the offence under section 377, P.P.C., to five years' R.I. and the fine of Rs.2,000/- or in default one year R.I."

The next argument advanced by the learned counsel for the convict-appellant that all the prosecution witnesses are close relatives to the complainant, hence their testimony cannot be believed has also got no force of law because it is an axiomatic precept of law that a related witness is as much competent witness as any other and can only be disbelieved if got a substantial motive to implicate the accused in a false case. Particularly in cases of Zina and sodomy in which the family honour is involved element of false implication is a rare phenomena. Reliance may be placed on 2023 SCR 1172 and 2012 PCr.LJ 1200. The defence failed to establish or allege any animosity of the prosecution witnesses towards accused or they have any motive to falsely implicate the accused in a such like criminal case, thus, the argument advanced by the learned counsel for the convict-appellant has got no essence, hence repelled.

2025 P Cr. L J 1794

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Muhammad Shahbaz Ali---Petitioner

Versus

The State through Police Station Chaksawari and another---Respondents

Criminal Revision Petition No. 128 of 2025, decided on 27th June, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Azad Penal Code (XLV of 1860), S. 298-A---Use of derogatory remarks, etc., in respect of holy personages---Bail, grant of---Allegations against the petitioner-accused was that he used derogatory remarks, etc., in respect of holy personages---In bailable offences, bail could be claimed as a matter of right---Offence under Section 289-A, Azad Penal Code, was bailable, hence the refusal of bail by the Courts below was not only unjustified but also a deviation from the statute as Courts were always expected to interpret law as it was and as it should be---It was commonly noticed that subordinate Courts while deciding bail application, deny the concession of bail merely by considering the consequences thereof and the public sentiments, whereas in such a situation it is the responsibility of the government to consider the public sentiments---Proper provision of law has to be added in order to enable the Courts to pass appropriate sentences to the culprits of such type of offences---Courts can not reject a bail application of a bailable offence by only considering the public sentiments---Sessions Court also travelled beyond the scope of the law governing bail matters as it wrongly held that offence under S.295-A Azad Penal Code, was also attracted---No doubt, a Court can convict an accused person in any offence though not mentioned in the report submitted under S.173,Cr.P.C., if same is attracted and proved from the evidence produced by the prosecution at the conclusion of the trial, but bail cannot be denied in bailable offence on the ground that some other non-bailable offence is also attracted---Rather it is beyond the jurisdictional competence of the Court because a right of bail given by the statute cannot be snatched in both cases of post and pre-arrest bail---Bail petition was allowed, in circumstances.

2002 PLC (C.S) 1138 rel.

Rashid Nadeem Butt for Petitioner.

Asif Bostan for Respondent No. 2.

Muhammad Khalil Ghazi, A.A.G for the State.

Date of hearing: 25th June, 2025.

Verdict:

The Captioned revision petition is hereby accepted.

Judgment

Chaudhary Khalid Rasheed, J.---

For word:

The captioned revision petition has been preferred against the order passed by learned Sessions Judge Mirpur dated 21.03.2025, whereby post arrest bail application filed by accused/petitioner has been rejected.

Precise facts forming background of the instant petition are, on the complaint of Asif Hussain, FIR No.17/2025 was registered at Police Station Chaksawari in the offence under section 298/A-APC on 06.02.2025.

On arrest in the supra mentioned case, the accused/petitioner filed an application before Senior Civil Judge/Judicial Magistrate Mirpur for his release on bail. After hearing arguments pro and contra the learned Magistrate rejected the application vide order dated 07.03.2025. The accused filed second application before Sessions Judge Mirpur for his release on bail which also met the same fate through the impugned order dated 21.03.2025, hence the captioned revision petition.

STANCE OF THE PETITIONER:

The learned counsel for the petitioner vehemently argued that the alleged offence under section 289-A/APC is bailable, hence the petitioner was entitled to get bail as of right but the Courts below failed to understand the relevant law as learned Sessions Judge erroneously held that section 295-A/APC is also attracted which falls within the prohibitory clause of section 497 Cr.P.C., thus requested for the acceptance of the instant revision petition. He placed his reliance on 2022 SCR 714.

REFUTATION OF THE RESPONDENTS:

The learned AAG as well as the learned counsel for complainant on the other hand opposed the revision petition by contending that the petitioner is fully linked with the offence with which he has been charged, hence is not entitled to be enlarged on bail.

I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

It is a well settled precept of law that in bailable offences, bail can be claimed as a matter of right. Reliance may be placed on 2022 SCR 714, wherein at page 717 it has been held as under:

"There is no denial that the alleged offences are bailable in which the punishment provided under law is three years imprisonment. In such like cases, the grant of bail is a right and not a grace."

The offence under section 289-A/APC is bailable, hence the refusal of bail by the Courts below is not only unjustified but also a deviation from the statute as Courts are always expected to interpret law as it is and not as it should be, as has been held in 2009 SCR 345. The relevant observations recorded at page 353 are reproduced as under:

"The law has to be interpreted as it is and not as it ought to be."

The same principle has been laid down in plethora of judgments, some of them are 2002 PLC (C.S) 1138, 2013 SCR 134, 2015 SCR 744.

It is commonly noticed that subordinate Courts while deciding bail applications, deny the concession of bail merely by considering the consequences thereof and supposing to face public sentiments whereas in such a situation it is the responsibility of the Government to consider the public sentiments and proper provision of law has to be added as an administrative justice in order to enable the Courts to pass appropriate sentences to the culprits of such type of offences but the Courts cannot reject a bail application of a bailable offence by only considering the public sentiments. The interpretation of Statute by Maxwell, 7th Edition, it has been observed as under:-

"The rule of construction is to intend the Legislature to have meant what they have actually expressed---'it matters not, in such a case, what the consequences may be__Where, by the use clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous__The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Courts as to what is just or expedient."

The learned Sessions Judge Mirpur also travelled beyond the scope of the law governing the bail matters as it has been wrongly held that offence under section 295-A/APC is also attracted. No doubt, a Court can convict an accused person in any offence though not mentioned in the report submitted under section 173 Cr.P.C. if is attracted and proved from the evidence produced by the prosecution at the conclusion of the trial but at a bail stage it cannot be denied in bailable offence on the ground that some other non-bailable offence is also attracted rather it is beyond the jurisdictional competence of the Court because a right of bail given by the statute cannot be snatched in both cases of post and pre-arrest bail cases.

The learned AAG also opposed the grant of concession of bail to the petitioner on the ground that some non-bailable offence also attracted but it is also very unfortunate that one of the principal law Officer of the state is of the opinion that some non-bailable offence also attracted but when confronted that why that offence neither added nor mentioned in the final report submitted under section 173 Cr.P.C., he remained mum and failed to reply the query of the Court which reveals that investigating agency instead of fulfilling its duty tried to put all liability of the case on the shoulders of the Court which is a regrettable and unfortunate pursuit rather they are expected to consider the opinion of one of its principal law officer of the state as per the requirement of law and to fulfill its duty instead of escaping from its legal obligations by putting all burden on the Courts.

It is also pertinent to mention that the Honourable Apex Court in the reported case supra mentioned also held at page 723 in para 11 of its judgment that:

2025 P Cr. L J 15

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Bushra Imran Khan---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 1744-B of 2024, decided on 23rd October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409 & 109---Prevention of Corruption Act (II of 1947), S.5 (2)---Criminal breach of trust, abetment and criminal misconduct---Bail, grant of---Old lady---Delay in conclusion of trial---Petitioner was a 52-year old lady, who suffered incarceration in different cases for a period of 263 days---In the instant case petitioner was arrested on 13-07-2024 and remained incarcerated at sub-jail and then at Central Prison, Rawalpindi for more than three months---Investigating officer did not want to question or interrogate the petitioner ever since the case was marked to him---Reference against petitioner had earlier been filed before Accountability Court-I, Islamabad, which meant that investigation in instant case was complete---Charge against petitioner had not been framed as yet and conclusion of trial was not in sight---Evidence was largely documentary in nature which was already in prosecution's possession---There was no chance of petitioner tampering with such evidence---Bail was allowed, in circumstances.

Barrister Salman Safdar, Salman Akram Raja, Barrister Khadija Siddiqui, Rai Salman Amjad, Ch. Khalid Yousaf, Shahina Shahab-ud-Din, Naheed Iqbal and Ayesha Shabbir for the Petitioner.

Umair Majeed Malik, Zulfiqar Abbas Naqvi, Special Prosecutors along with M. Afzal Khan Niazi, Deputy Director, Shahid Parwaiz Malik, Assistant Director / IO and Wajid Hussain, Assistant Director, FIA ACC, Islamabad for the Respondents.

Order

Miangul Hassan Augranzeb, J.---Through the instant criminal miscellaneous petition, the petitioner, Bushra Imran Khan, seeks the grant of post-arrest bail in FIA case No.SJC-1/T/01/2024, dated 18.09.2024, registered under Sections 109 and 409 of the Pakistan Penal Code, 1860 ("P.P.C.") read with Section 5(2) of the Prevention of Corruption Act, 1947.

1. The petitioner is the spouse of the former Prime Minister of Pakistan. They were both convicted and sentenced to seven years of imprisonment by the Judicial Magistrate (Section 30), East-Islamabad vide judgment dated 03.02.2024 passed in private complaint No.7096/2023. The appeal against the said judgment was allowed by the learned appellate Court vide judgment dated 13.07.2024, whereby they were both acquitted. As the petitioner was being released from Central Prison, Rawalpindi, she was arrested on 13.07.2024 by National Accountability Bureau ("NAB") in a matter which was under investigation and finally led to the filing of Accountability Reference No.01/2024 before the learned Accountability Court-II, Islamabad on 19.07.2024. On 27.08.2024, the petitioner had filed a post-arrest bail petition before the learned Accountability Court-II, Islamabad.

2. As a result of the judgment dated 06.09.2024 passed by the Hon'ble Supreme Court in Intra Court Appeals Nos.2, 3 and 4/2023, amendments made in the National Accountability Ordinance, 1999 through the National Accountability (Amendment) Act, 2023, National Accountability (Second Amendment) Act, 2023 and National Accountability (Amendment) Act, 2022 were held to be lawful as a consequence of which the said Accountability Reference No.01/2024 did not fall within the jurisdiction of the learned Accountability Court. Vide order dated 09.09.2024, the learned Accountability Court-II, Islamabad turned down the request made by the learned counsel for the petitioner to decide the pending post-arrest bail petition. The learned Accountability Court-II, Islamabad, vide order dated 09.09.2024, referred the case to the Senior Special Judge (Central-I), Islamabad and the parties were directed to appear before the said Court on 10.09.2024. On 18.09.2024, the case against the petitioner and her spouse was registered as FIA Case No.SJC-1/T/01/2024.

3. On 12.09.2024, the petitioner and her spouse had filed Writ Petition No.2716/2024 before this Court seeking a direction to the Special Judge (Central-I), Islamabad to decide the pending post-arrest bail petitions expeditiously. The said writ petition was disposed of vide order dated 18.09.2024. The operative part whereof is reproduced herein below:-

"7. The National Judicial (Policy Making) Commission has already issued a policy according to which "bail applications under Section 497 of Cr.P.C shall be decided not beyond a period of 3 days by the Magistrate, 5 days by the Court of Sessions and 7 days by the High Court." To a Special Court, the timeline given for the Court of Sessions would apply. Therefore, I deem it appropriate to dispose of the instant petition with the observation that the learned trial Court may decide the pending post-arrest bail petitions by bearing in mind the mandate under the said Policy."

1. The Senior Special Judge (Central-I), Islamabad vide order dated 30.09.2024 dismissed the post-arrest bail petitions filed by the petitioner and her spouse. On 03.10.2024, the petitioner filed the instant petition seeking post-arrest bail in FIA Case No.SJC-1/T/01/2024 dated 18.09.2024, registered under Sections 109 and 409 P.P.C. read with Section 5 of the Prevention of Corruption Act, 1947.

2. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that on account of being the spouse of the former Prime Minister, who is presently incarcerated in the Central Prison, Rawalpindi, the petitioner has been subjected to political victimization by the registration of several cases against her; that the petitioner has remained incarcerated for more than 263 days in different cases; that in the instant case, she was arrested by NAB on 13.07.2024 and has remained incarcerated for more than three months; that the investigation in the case against her is complete and her custody is not required for any further questioning; that the petitioner is more than 52 years of age and a mother of five children; that the case against the petitioner is of aiding and abetting under Section 109 P.P.C.; that after the case was referred by learned Accountability Court-II, Islamabad to the Federal Investigation Agency ("FIA") on 09.09.2024, FIA completed the probe against the petitioner and her spouse on 20.09.2024; that the prosecution has been selective in nominating the accused in the case; that the offence which the petitioner is alleged to have committed is not mentioned in the Schedule to the Federal Investigation Agency Act, 1974 ("FIA Act"); that the petitioner has never remained a government servant or a public office holder and therefore cannot be proceeded against under the provisions of the FIA Act; that there is a substantial delay of three years in the registration of the case against the petitioner; that the statements of five witnesses against the petitioner have also been recorded with a substantial delay; and that whether or not the petitioner is guilty of aiding and abetting would be determined during the course of trial.

3. Learned counsel for the petitioner went through the contents of the report under Section 173 of the Code of Criminal Procedure, 1898 ("Cr.P.C") and submitted that at best the case against the petitioner was that she did not deposit the jewellery set with the Cabinet Division / Toshakhana; that there is no allegation against the petitioner to the effect that the factum as to receipt of the jewellery set had not been reported to the Cabinet Division / Toshakhana; that the Cabinet Division's Office Memorandum ("O.M.") dated 18.12.2018 which was in vogue when the jewellery set was gifted to the petitioner does not make the non-deposit of a gift liable to "appropriate action;" and that when the said jewellery set was gifted to the petitioner, "relevant rules" had not been framed for taking action against an individual who had not reported the receipt of a gift. Learned counsel for the petitioner prayed for the instant petition to be allowed and for the petitioner to be released on bail.

4. On the other hand, learned Special Prosecutor, FIA came up with a well prepared brief on the case. He produced a compendium of office memoranda containing the procedure for the acceptance of gifts and their disposal. He further submitted that the Cabinet Division's O.M. dated 18.12.2018 was in force when the petitioner retained the jewellery set which was gifted to her by the Crown Prince of Kingdom of Saudi Arabia; that the said O.M. has the legal status of a policy decision; that under the applicable procedure, the petitioner was duty bound to have deposited the jewellery set with the Cabinet Division / Toshakhana; that although the then Deputy Military Secretary, on 18.05.2021, had declared the factum as to the receipt of the said gift to the Section Officer of the Toshakhana along with a request for price assessment, however, the said set was never deposited with the Cabinet Division / Toshakhana; that the Toshakhana Section had engaged a private appraiser, namely Sohaib Abbasi, who has become an approver against the petitioner and her spouse; that the said private appraiser also provided an undervalued assessment on 26.05.2021 on the basis of pressure exerted by the petitioner and her spouse; that on 27.05.2021, the Collectorate of Customs had also provided an undervalued price assessment; that on 28.05.2021, the undervalued price assessment was reported by the Cabinet Division to the Deputy Military Secretary; that on the basis of such undervalued price assessment, the petitioner, on 08.07.2021 deposited an amount against challan No.2043 with the Toshakhana; that by retaining the said jewellery set, the petitioner had violated the procedure for the acceptance and disposal of gifts; and that the petitioner, as a family member of the former Prime Minister of Pakistan, was bound to declare and deposit the gift received during a foreign visit.

5. Learned Special Prosecutor, FIA further submitted that the offence of criminal breach of trust under Section 409 P.P.C. carries a sentence of imprisonment for life or with a sentence of either description for a term which may extend to ten years; that the petitioner has not completed statutory period of six months of incarceration since her arrest in this case on 13.07.2024; that the petitioner is not entitled to the concession of bail since she has already been convicted in a similar case by the Accountability Court-I, Islamabad vide judgment dated 31.01.2024; that although the sentence awarded to the petitioner has been suspended by the appellate forum but such suspension does not wipeout the petitioner's conviction; and that since the petitioner has a criminal history, she is not entitled to the concession of post-arrest bail. Learned Special Prosecutor, FIA prayed for the post-arrest bail to be dismissed.

6. I have heard the contentions of the learned counsel for the petitioner as well as the learned Special Prosecutor, FIA and have perused the record with their able assistance.

7. The gist of the allegation against the petitioner is that during the period between 07.05.2021 to 10.05.2021 when the petitioner, along with her spouse i.e., the then Prime Minister, visited the Kingdom of Saudi Arabia she received a Bvlgari jewellery set as a gift from the Crown Prince of the said Kingdom; that although the receipt of the said gift was reported to the Cabinet Division, the same was not deposited with the Toshakhana / Cabinet Division and its possession was retained by the petitioner; that as a result of the influence exerted by the petitioner and her husband on the private appraiser, namely Sohaib Abbasi, the jewellery set was assessed at undervalue so that the petitioner could purchase the same by paying 50% of the undervalued amount; and that by paying 50% of the undervalued amount, a loss amounting to Rs.32,851,300/- had been caused to the national exchequer.

8. The "procedure for the acceptance and disposal of gifts" contained in the Cabinet Division's O.M. dated 18.12.2018 was in force when the said jewellery set was allegedly gifted to the petitioner. In the report under Section 173 Cr.P.C, stress has been laid on clause (1) of the said procedure to bring home the point that the petitioner was not just liable to declare the receipt of the gift but also to deposit the same with the Toshakhana / Cabinet Division, and that such non-deposit would entail criminal liability under Section 409 P.P.C.

9. For the purposes of clarity, clause (1) of the said O.M. dated 18.12.2018 is reproduced herein below:-

"(1) The responsibility rest with the individual recipient to report receipt of the gift(s) to Cabinet Division. All gifts received by the Government/Public functionaries irrespective of their prices, must be reported and deposited immediately in Toshakhana of the Cabinet Division, Government of Pakistan. If it is found, on checking, that an individual has not reported the receipt of a gift, appropriate action will be taken against him under the relevant rules."

(Emphasis added)

1. Now, it has not been denied that the factum as to the receipt of the jewellery set had been declared by the then Deputy Military Secretary of the former Prime Minister to the Toshakhana / Cabinet Division on 18.05.2021. This is explicitly mentioned in the report under Section 173 Cr.P.C. The reason why criminal prosecution is taking place against the petitioner is that the said jewellery set is alleged to have never been deposited in the Toshakhana / Cabinet Division. But prima facie such non-deposit does not entail "appropriate action" under "the relevant rules" in terms of the O.M. dated 18.12.2018. It is the non-reporting of the receipt of the gift that entails appropriate action under the rules. In order to overcome this, the Cabinet Division on 18.03.2023 issued an O.M., clause (1) whereof is substantially the same as clause (1) of the O.M. dated 18.12.2018 except that the non-deposit of a gift with the Toshakhana within a prescribed time limit is required to be met with "appropriate punitive action" under "the relevant rules." For the purposes of clarity, clause (1) of the O.M. dated 18.03.2023 is reproduced herein below:-

"(1) The responsibility rests with the individual recipient to report receipt of the gift(s) to Cabinet Division. All gifts received by the Government/Public functionaries irrespective of their prices, must be reported and deposited in Toshakhana of the Cabinet Division, Government of Pakistan within 30 days of receipt of the gift(s) or 30 days from the date of return to Pakistan in case of foreign visit. If it is found, on checking, that an individual has not reported the receipt of gift(s) to Cabinet Division and deposited it in Toshakhana within the time limit, appropriate punitive action will be taken against him / her under the relevant rules."

(Emphasis added)

1. The said O.M. dated 18.03.2023 was to have effect from 22.02.2023. Learned Special Prosecutor, FIA submitted very fairly that the said O.M. dated 18.03.2023 does not have retrospective effect so as to be made applicable to the case against the petitioner which took place almost two years before the said O.M. was issued. The fact that the O.M. dated 18.12.2018 does not make the non-deposit of the gift with the Toshakhana / Cabinet Division liable to "appropriate action" under "the relevant rules," this would, in my tentative view, make the case against the petitioner as one of further inquiry.

2025 P Cr. L J 130

[Islamabad]

Before Arbab Muhammad Tahir, J

Hazrat Usman and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision Petitions Nos. 201 and 202 of 2023, decided on 3rd January, 2024.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 94 & 540---Police Rules, 1934, Rr. 22.3 & 22.4---Possession of narcotic substances---Summoning of documents---Scope---Application for the summoning of daily dairy and register No. 19 of Moharar Malkhana was dismissed---Petitioners were facing trial in a criminal case, which was at the stage of recording of prosecution witnesses---Examination-in-chief of Moharar Malkhana had been recorded, whereas, during cross-examination of that witness, the petitioners filed two applications i.e. (i) for examination of the signatures of Investigating Officer from the handwriting expert, and (ii) for the summoning of a daily diary dated 07.10.2022 and register No.19 maintained at the Police Station under the relevant rules---Trial Court dismissed the first application i.e. examination of signatures by a handwriting expert, with the observation that petitioners were required to file the said application "at early stage of case", whereas, the second application i.e. for summoning of daily dairy and register No.19, it was concluded that "if the accused has any doubt regarding entries in the daily diary and register No.19, then he had the right to file complaint against the Police Officials before their high-ups in police department"---Trial Court, therefore, dismissed both the applications---Validity---Trial Court is empowered to summon any person as a witness if his evidence appears to be essential for the just decision of the case within the purview of S.540, Cr.P.C.---Object underlying S.540, Cr.P.C, is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side---Accused has every right to shatter the credibility of the witnesses by advancing his defense and to require the production of documents, necessary to ascertain the truthfulness of the criminal charge levelled against him, provided that the accused makes an application at the appropriate stage provided by law---In the present case, the trial was at the stage of S.265-F(2), Cr.P.C and the Court was taking evidence produced in the support of prosecution---Trial Court should proceed with the trial in the manner contemplated by the provisions of that said section---Accused would be at liberty to file applications for the summoning of Daily Diary dated 07-10-2022 and Register No.19, and for comparison of signatures of Investigating Officer at the stage when S.265-F(7), Cr.P.C. came into play---At such stage of trial, even if the petitioners did not opt to lead defence evidence, they would be at liberty to file applications under S.94, Cr.P.C.---Trial Court should decide the applications (if any) strictly in accordance with the law with regard to the admissibility and relevancy of evidence---Revision petitions were disposed of accordingly.

The State v. Chaudhry Muhammad Usman 2023 SCMR 1676 rel.

Malik Muhammad Haseeb for the Petitioner.

Hazrat Younas, State Counsel for the State.

Sudher Abbasi, ASI with record.

Order

Arbab Muhammad Tahir, J.---The petitioners, through both these criminal revision petitions have impugned two separate orders, both dated 12.12.2023, passed by the learned Additional Sessions Judge, Islamabad (West).

1. The petitioners are accused and facing trial in FIR No.1179/22, dated 07.10.2022 registered under sections 9(1)3(c)/15 at the Police Station Industrial Area, Islamabad. The trial is at the stage of recording statements of prosecution witnesses. Five witnesses have already been examined whereas during cross-examination of PW-6, the petitioners filed two separate applications. In one application the petitioners requested for examination of the signatures of Zulfiqar, S.I./I.O. from the handwriting expert. The other application was filed by the petitioners for the summoning of the daily diary dated 07.10.2022 and Register No.19 maintained at the Police Station under the relevant rules. Both the applications were dismissed by the trial court through the impugned orders, dated 12.12.2023, hence these revisions petitions.

2. The learned counsel for the petitioners has argued that; the impugned orders have been passed illegally; the findings of the trial court are perverse; the petitioners are facing criminal trial and entitled to due process and fair trial under Article 10-A of the Constitution; the applications were moved to bring the truth on record and prove their innocence; the impugned orders have blocked the defence of the petitioners; the impugned orders are liable to be set-aside.

3. Learned State Counsel on the other hand has argued that; the applications were misconceived; the applicants could have filed the applications after conclusion of prosecution evidence; the petitioners will be at liberty to adduce evidence after conclusion of prosecution evidence; the petitioners are attempting to create new evidence during trial; the provisions of section 94 Cr.P.C. can be invoked to call for existing documents; the impugned orders are well reasoned; the petitions are liable to be dismissed.

4. Heard. Record perused.

5. The petitioners are facing trial in a criminal case. The trial is at the stage of recording of prosecution witnesses. The examination-in-chief of PW-6 has been recorded, whereas, during cross-examination of this witness, the petitioners filed two applications i.e. (i) for examination of the signatures of Zulfiqar, from the handwriting expert, and (ii) for the summoning of a daily diary dated 07.10.2022 and register No.19 maintained at the Police Station under the relevant rules. The trial court dismissed the first application i.e. examination of signatures by a handwriting expert, with the observation that petitioners were required to file the said application "at early stage of case", whereas, the second application i.e. for summoning of daily dairy and register No.19, it was concluded that "if the accused has any doubt regarding entries in the daily diary and register No.19, then he had the right to file complaint against the police officials before high-ups of police department". The trial court, therefore, dismissed both the applications.

6. The applications filed by the petitioners have been perused, however, the provision of law under which the said applications were filed has not been mentioned. Chapter XXII-A of the Code of Criminal Procedure, 1898 (hereinafter the "Cr.P.C.") deals with 'trials before High Courts and Courts of Sessions'. The trial has already commenced and the prosecution has produced witnesses in support of its case. Section 265-F Cr.P.C. read with Article 133 of the Qanun-e-Shahadat Order, 1984 governs the order of examination of witnesses. As the evidence of the prosecution is not yet over, it can safely be assumed that the petitioners had made the applications under section 94 Cr.P.C.

7. The Supreme Court in the case titled "The State v. Chaudhry Muhammad Usman" [2023 SCMR 1676] has extensively discussed sections 265-F(7) and 94 Cr.P.C. It has been held that "A bare reading of section 94 shows that there is no limitation as to the stage of the inquiry or trial when a court can, in the exercise of its power under this Section, make an order for the production of any document. The only condition for the exercise of the power under section 94 is that the production of the document must be necessary or desirable for the purposes of the inquiry or trial before the court. The word 'whenever' in section 94 clearly indicates that a court can exercise the power of requiring the production of any document under this Section at any stage of the inquiry or trial." It has further been held that there is no restriction as to whose point of view, whether prosecution or the accused, the required documents may be necessary or desirable for the purpose of inquiry or trial. The Supreme Court in the referred judgment has further held as follows:-

"There may be cases in which owing to dishonesty, negligence or any other reason, the prosecution does not produce certain documents with the police report, which may establish that there is no probability of the accused being convicted of any offence or the charge against the accused is groundless, and the production thereof is thus necessary or desirable for the purposes of the inquiry or trial. But because such documents are not filed with the police report, the same will not be supplied to the accused under section 265-C, Cr.P.C. In such cases, it would not be just and fair to the accused to reject his application for the production of such documents and to let him undergo the ordeal of protracted trial proceedings and wait for the stage of defence evidence. Similarly, the documents which are not produced by the prosecution with the police report but are relevant to the matter under the inquiry or trial and to use them for his defence, the accused is legally required to confront the prosecution witnesses with those documents in their cross-examination. In such a circumstance it would be in the interest of justice that the application of the accused made under section 94 for their production is allowed. Otherwise, it would incur unnecessary delay, expense and inconvenience to recall the prosecution witnesses at the stage of defence evidence only for the purpose of confronting them with such documents."

Furthermore, when the prosecution concludes its evidence, the accused shall be asked whether he means to adduce evidence in accordance with section 265-F(4) of Cr.P.C. If the accused answers positively, he shall exercise his right envisaged in section 265-F(7) of Cr.P.C. It would be advantageous to reproduce this section, which reads as under:-

"If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of Justice. Such ground shall be recorded by the Court in writing. (emphasis added)

2025 P Cr. L J 355

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Muhammad Riaz alias Kala---Appellant

Versus

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

Criminal Appeal No. 33 of 2023, decided on 29th July, 2024.

(a) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possession of illicit weapon---Appreciation of evidence---Place of recovery not in a clusive possession of accused---Scope---Prosecution case was that during interrogation of a murder case, a pistol was recovered on the disclosure of accused which was allegedly used in the main occurrence---Perusal of the record revealed that the place of recovery i.e. bushes in the graveyard, was an open place and it could not be said with certitude that the public had no access to it---Nothing was in the prosecution's evidence that the appellant had exclusive access to the said premises and no one else had control over it---Further, Investigating Officer, during cross-examination, deposed that he neither called the caretaker nor any chowkidar of said graveyard---Moreover, the recovery was purportedly effected from appellant on 25.05.2022 whereas the occurrence in which the pistol was used took place on 20.04.2022---Recovery was made after a delay of more than 30 days and that too from a place which was not exclusively accessible to the appellant---Appeal against conviction was allowed, in circumstances.

(b) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possession of illicit weapon---Appreciation of evidence---Non-association of private witnesses at the time of recovery proceeding---Prosecution case was that during interrogation of a murder case, a pistol was recovered on the disclosure of accused which was allegedly used in the main occurrence---According to un-scaled site-plan a Mohallah was situated in front of the place of recovery whereas witnesses in their cross-examination admitted that no private/independent person from the public or nearby locality was associated as witness during the recovery proceedings---Thus, it was evident from the record that the Investigating Officer had not furnished any plausible explanation as to why he did not associate any private witness from locality with recovery proceedings---Moreover, it did not appeal to a prudent mind that the place of recovery was exclusively accessible to or in the possession of the appellant up to the time of recovery---Appeal against conviction was allowed, in circumstances.

State Through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Mushtaq Ahmad v. the State PLD 1996 SC 574; Manjhi v. The State PLD 1996 Kar. 345 and Ghulam Mustafa v. The State 2011 PCr.LJ 723 rel.

(c) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possession of illicit weapon---Appreciation of evidence---Safe custody of the case property not established---Prosecution case was that during interrogation of a murder case, a pistol was recovered on the disclosure of accused which was allegedly used in the main occurrence---Record showed that the Moharir Malkhana was not produced as witness to establish the safe custody of the pistol in the instant case---No reasonable explanation was given as to where and in whose custody the said pistol remained after it was purportedly recovered on the pointation of appellant---Evidently, Moharir Malkhana was neither produced nor his testimony was exhibited during trial---Thus, it would not be in the interest of justice to sustain conviction of appellant when safe custody of the case property was not established---Issue of safe custody of recovered articles or case property from an accused requires paramount consideration especially in criminal offences for which an accused could be convicted for mere possession of such articles/property---Appeal against conviction was allowed, in circumstances.

Ahmad Ali and another v. The State 2023 SCMR 781; Rustam Ali Shar v. The State 2024 PCr.LJ 68; Nasrullah alias Momin and another v. The State 2023 PCr.LJ 589; Zeenat Ali v. The State 2021 PCr.LJ 1294; Said Wazir and another v. The State and others 2023 SCMR 1144; Muhammad Hazir v. The State 2023 SCMR 986; Javed Iqbal v. The State 2023 SCMR 139; Akhtar Gul v. The State 2022 SCMR 1627; Abdul Ghani and others v. The State and others 2019 SCMR 608 and Muhammad Younis v. The State 2021 PCr.LJ 851 rel.

(d) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Forensic Science Laboratory Report of recovered weapon not available---Scope---Prosecution case was that during interrogation of a murder case, a pistol was recovered on the disclosure of accused which was allegedly used in the main occurrence---Record showed that the pistol was sent to Forensic Science Agency in the other case which was functional and crime empties were also recovered in that case which matched with it---However, the record of the instant case revealed that no such report was produced/exhibited during the judicial proceedings of the case---Evidence given by a witness in judicial proceedings of one case could not be read into another case except as provided under the Qanun-e-Shahadat, 1984---Appeal against conviction was allowed, in circumstances.

Nur Elahi v. The State and another PLD 1966 SC 708; Muhammad Sarwar and others v. Khushi Muhammad and another 2008 SCMR 350 and Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148 rel.

(e) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possession of illicit weapon---Appreciation of evidence---Contradictions in the statements of witnesses---Prosecution case was that during interrogation of a murder case, a pistol was recovered on the disclosure of accused which was allegedly used in the main occurrence---In the present case, there were contradictions in the testimonies of complainantand Investigating Officer regarding the exact time of occurrence---Complainant during cross-examination, deposed that the Police Officials along with the appellant departed from police station CTD at about 2:15 pm whereas the Investigating Officer in his cross-examination deposed that they left the police station soon after the disclosure of appellant in physical remand and reached the place of recovery at about 3 pm---However, according to the complaint as well as FIR the time of occurrence was stated as 2:15 pm and at that time the appellant purportedly entered the graveyard and recovered the pistol---Thus, the version advanced by both the witnesses was in direct contradiction with their own complaint and FIR---Said witnesses accompanied the appellant in the whole process and witnessed the entire recovery proceedings, so their contradictory statements regarding time of occurrence could not be overlooked as mere minor discrepancies---Even there was nothing on record to corroborate the assertions of said witnesses regarding the time of departure/arrival from the police station---Another contradiction was regarding the item in which the pistol was wrapped when it was recovered from the graveyard---As per the complaint and FIR the said pistol was wrapped in an envelope of blue colour whereas the complainant deposed that it was wrapped in a shopper of black colour and the Investigating Officer deposed that it was wrapped in a shopper of blue colour---Such contradictions raised serious doubts on the credibility of prosecution's witnesses---Appeal against conviction was allowed, in circumstances.

Azhar Yousaf for Appellant.

Muhammad Naseem, State Counsel and Ibrahim Sajid, Inspector for the State.

Assisted by Aamir Ali Rana, Law Clerk, IHC.

Date of hearing: 22nd May, 2024.

Judgment

Tariq Mehmood Jahangiri, J.---This Criminal Appeal is filed under section 410 of the Code of Criminal Procedure, 1898 ('Cr.P.C.') against the impugned judgment dated 18.01.2023, passed by the Additional Sessions Judge, Islamabad (West), whereby appellant has been convicted and sentenced in case FIR No. 9/22, dated 25.05.2022, offence under sections 13/20/65 of the Arms Ordinance, registered at police station CTD, Islamabad, under sections 13/20/65 of the Pakistan Arms Ordinance, 1965, to rigorous imprisonment for 1-year and imposed fine of Rs. 20,000 and in case of default in payment of fine, he shall further undergo 3 months simple imprisonment and benefit of section 382-B of Cr.P.C. extended to him and all sentences awarded to him shall run concurrently.

1. Brief facts of the case, according to prosecution, are that on 25.05.2022 the appellant-accused made a disclosure during physical remand in the case FIR No. 8/22, dated 20.04.2022, offences under sections 302, 353, 186, 34 of the P.P.C. and section 7 of Anti-Terrorism Act, 1997, registered at Police Station CTD, Islamabad, that he had concealed .30 bore pistol in the graveyard of Tarlai Kalan which was used to fire upon police in the occurrence of aforementioned case i.e. FIR 8/22 and it could be recovered on his pointation. On such disclosure 'the 'appellant-accused was taken to the Mohallah Chaudhrian Tarlai Kalan graveyard near Paaniwali Tanky at about 2:15 pm on 25.5.2022 by the Investigating Officer ('IO') Shams-ul-Akbar along with Khalid Khan ASI, Muhmmad Naeem ASI, Azhar Mehmood ASI, Asad Iqbal HC/3283, Araib Haider C/8965 on a government vehicle bearing No. GAC-696 which was driven by Muhammad Ayub C/3077. The appellant-accused then entered the said graveyard and, he led the police to place of recovery and, got recovered .30 bore pistol of black colour from the bushes underneath stones which was wrapped in blue envelope, and it was handed over and upon unloading three live rounds were found in a magazine. The appellant-accused failed to produce any license or permit in respect of the said pistol. Consequently, the instant case was registered.

2. After completion of investigation, the police submitted report under section 173 of the Cr.P.C. Subsequently, on 14.11.2022 the appellant was indicted for commission of an offence under sections 13 and 20 of the Pakistan Arms Ordinance, 1965 ('AO'). The charges were read to the appellant to which he pleaded not guilty and claimed trial. During trial the prosecution produced following witnesses:

i. Muhammad Naeem ASI, PW-1

He was posted at CTD on 25.05.2022 and he was present when appellant made a disclosure during custody. He accompanied police party along with the appellant to the place of recovery. He was also one of the witnesses of recovery memo.

ii. Shams-ul-Akbar Inspector, PW-2

On 25.05.2022 he was posted at CTD as inspector. The investigation of the connected case, i.e. FIR No. 8/22, was assigned to him when the main investigating officer went on leave, and in his presence the appellant made a disclosure during custody in that case. He headed the police party to the place of recovery and conducted entire investigation of this. He prepared parcel of case property i.e. .30 bore pistol (P-1), recovery memo, un-scaled site-plan (Ex. PA) of the place of reco very, complaint and recorded statements of witnesses. The complaint was sent to PS CTD for registration of FIR through constable Asad. After completion of recovery proceedings, he went back to the PS CTD along with other officials and handed over the case property to Mohrir Malkhana.

iii, Muhammad Asghar ASI; PW-3

He chalked out the FIR of this case.

Moreover, the prosecution, during trial, produced un-scaled site-plan of place of recovery (Ex. PA) and closed its evidence on 10.01.2023.

1. After the conclusion of prosecution's evidence, the statement of appellant under section 342 of Cr.P.C. was recorded on 17.01.2023 wherein the incriminating evidence which surfaced during trial was put to him. He asserted his innocence and maintained that he was falsely implicated in the instant case and the police foisted fake recovery of pistol on him. He denied any disclosure and pointation regarding recovery to police officials. He neither opted to produce evidence in his defense nor appeared as witness under section 340(2) of Cr.P.C. Subsequently, the trial court convicted and sentenced him as mentioned above. Hence, this Appeal.

2. The learned counsel for the appellant, inter alia, contends that the appellant is falsely implicated in this case; there are material contradictions in the statements of witnesses regarding time of occurrence and colour of the article in which the pistol was wrapped; the prosecution did not produce the carrier of complaint as witness during trial; to prove the safe custody of case property the Mohrir Malkhana was not produced as witness during trial; all the witnesses of prosecution were police officials and no independent witness was taken from public; alleged recovery was effected from a graveyard which is an open place; no statement of watchmen or caretakers of place of recovery i.e. graveyard was recorded; the complaint, FIR and recovery memo. of the instant: case were not exhibited during trial; the prosecution failed to produce reliable, coherent and confidence inspiring evidence; and lastly prays that by extending benefit of doubt to the appellant his conviction and sentence should be set aside.

3. On the other hand, the learned State Counsel submitted that the prosecution adduced sufficient evidence to establish the criminal culpability of the appellant; the pistol, at the pointation of appellant, was effected from the place of recovery; there is no previous enmity of witnesses to falsely depose against the appellant; no major contradictions in the testimonies of witnesses; the trial court appreciated every aspect of evidence and finally submitted that the appellant is rightly convicted and sentenced vide impugned judgment and prayed for dismissal of the instant Appeal.

4. The arguments of learned counsel for the parties have been heard and the record of case is examined with their able assistance.

5. The case of prosecution primarily hinged upon the recovery of .30 bore pistol (Ex. P1) from a graveyard on the pointation of appellant, the testimony of police officials Muhammad Naeem ASI (PW-1), Shams-ul-Akbar Inspector (PW-2) and Muhammad Asghar ASI (PW-3) and unscaled site-plan of place of recovery (Ex. PA).

6. Perusal of the record reveals that the place of recovery, i.e. bushes in the graveyard of Tarlai Kalan, was an open place and it cannot be said with certitude that the public had no access to it. It is nowhere in the prosecution's evidence that the appellant had exclusive access to the said premises and no one else had control over it. Further, Shams-ul-Akbar Inspector (IO/PW-2), during cross-examination, deposed that he neither called the caretaker nor any chowkidar (watchman) of aforesaid graveyard. Moreover, the recovery was purportedly effected from appellant on 25.05.2022 whereas the occurrence in which the pistol (Ex. P1) was used took place on 20.04.2022. It is quite clear that the recovery was made after a delay of more than 30 days and that too from a place which was not exclusively accessible to the appellant. According to un-scaled site-plan (Ex. PA) the Mohallah Chaudhrian was situated in front of the place of recovery whereas the Muhammad Naeem ASI (PW-1) and IO/PW-2, in their cross-examination, admitted that no private/independent person from the public or nearby locality was associated as witness during the recovery proceedings. The Supreme Court in a case titled as State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) held that two witnesses from the public of locality must be associated with recovery proceedings as mandated by section 103 of the Cr.P.C. unless it becomes impossible to have such witnesses and its relevant passages are reproduced below for ready reference:

"9. As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent judgment of this Court in the case of Mushtaq Ahmad v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to Secure two Mashirs from the public....no efforts were made by him to secure two Mashirs from the public. In this view of the matter, the recoveries are doubtful.

10. Reverting to the third submission that since in support of the case under section 13-D of the Arms Ordinance the recovery witnesses were the police personnel, no implicit reliance can be placed on their evidence, it may be stated that he has relied upon the following observation from the judgment of this Court in the case of Mushtaq Ahmad v. The State (supra):--

"(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted;

The above extract from the above judgment of this Court lends support to Mr. Aqil's above submission. Therefore, on this account also the conviction under section 13-D of the Arms Ordinance cannot be sustained."

The Supreme Court in a prior seminal judgment of Mushtaq Ahmad v. The State (PLD 1996 SC 574) enunciated section 103 of Cr.P.C. with reference to relevant precedents and it settled the following principles:

"13. From the above provisions of Cr.P.C. and the case law, the following principles are deducible: --

(i) That section 103, Cr.P.C. relates to a search of a place situate in a locality and not to a search of a person;

(ii) That the requirement of section 103, Cr.P.C. that the officer or the other person who is about to make search of a place under Chapter VII of the Cr.P.C. to call von two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness search though is procedural but is of mandatory in nature. It is designed and intended to guard against any possible chicanery and concoction;

(iii) That if in spite of the best efforts on the part of the officer or the other person who made the search, two or more respectable inhabitants had not attended and witnessed the search and if there was nothing on record to cast doubt about the bona fide of the officer or the other person, the above search would not be vitiated and the testimony of the officer concerned could be relied upon.

(iv) That there is a marked distinction between a case in which compliance of section 103, Cr.P. C. is made and a case in which no efforts to comply with the same were made and the police personnel were made Mashirs to the recovery. In the former case, failure to produce two respectable inhabitants as witnesses on the Court for a justifiable reason free from any doubt would justify the acceptance of his or their testimony, whereas the latter case, the search would lose its credibility particularly when the testimony of such Mashirs is challenged by the defence in the cross -examination;

(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces or evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted;

(vi) That there is also a marked distinction between a case in which a police officer is an eye -witness to the commission of an offence like a murder on a road where he is on duty and a case in which he is an investigating officer and as such becomes a Mashir to the recovery of a crime weapon. In the former case, his testimony is as good as of any other witness from the public, but in the latter case in the absence of any justifiable reason not to make two or more respectable inhabitants of the locality as witnesses to the recovery, implicit reliance cannot be placed on the recovery if the same is challenged by the defence in the cross-examination;

(vii) That the question, whether testimony of a police official as a Mashir to the recovery of an offending article is to be accepted or not besides testing on the touchstone of the above legal principles, depends on the facts of each case; the Court will have to discern inter alia, as to whether such witness bore any animus against the accused involved or was he not over zealous investigating officer/witness. "

Reliance is also placed on Manjhi v. State (PLD 1996 Kar. 345); Ghulam Mustafa v. The State (2011 PCr.LJ 723). Thus, it is evident from the record that the IO/PW-2 had not furnished any plausible explanation as to why he did not associate any private witness from locality with recovery proceedings. Also, it does not appeal to a prudent mind that the place of recovery was exclusively accessible to or in the possession of the appellant up to the time of recovery.

1. The constable Asad Iqbal transmitted the complaint from place of recovery to police station for registration of FIR, but he was not produced as witness during trial. Similarly, the Mohrir Malkhana was not produced as witness to establish the safe custody of the pistol (Ex. P1) in the instant case. No reasonable explanation was given as to where and in whose custody the said pistol remained after it was purportedly recovered on the pointation of appellant. It is evident that Moharir Malkhana was neither produced nor his testimony was exhibited during trial. Thus, it would not be in the interest of justice to sustain conviction of appellant when safe custody of the case property is not established. The Supreme Court in a recent case titled as Ahmad Ali and another v. The State (2023 SCMR 781) held that it is the duty of the police and prosecution to establish that a case property was kept in safe custody and its relevant excerpts are reproduced below for ease of reference:

"5.... Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said Police Station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court."

"6.... Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses."

Reliance is also placed on Rustam Ali Shar v. The State (2024 PCr.LJ 68) and Nasrullah alias Momin and another v. The State (2023 PCr.LJ 589) and Reliance is also placed on the case titled as Zeenat Ali v. The State (2021 PCr.LJ 1294).

1. The issue of safe custody of recovered articles or case property from an accused requires paramount consideration especially in criminal offences for which an accused could be convicted for mere possession of such articles/property. The superior courts, in a series of precedents, time and again emphasized on the importance of safe custody in such cases. In the following cases the superior courts, inter alia, noted that the Moharir Malkhana was not produced as witness and laid great emphasis on the significance of proving safe custody and transmission:

i. Said Wazir and another v. The State and others (2023 SCMR 1144)

ii. Muhammad Hazir v. The State (2023 SCMR 986)

iii. Javed Iqbal v. The State (2023 SCMR 139)

iv. Akhtar Gul v. The State (2022 SCMR 1627)

v. Abdul Ghani and others v. The State and others (2019 SCMR 608)

vi. Muhammad Younis v. The State (2021 PCr.LJ 851)

1. Moreover, the trial court made an observation, in the impugned judgment, that the pistol (Ex. P1) was sent to PFSA in the other case which was functional, and crime empties were also recovered in that case which matched with it. However, the record of the instant case reveals that no such report was produced/exhibited during the judicial proceedings of this case. Evidence given by a witness in judicial proceedings of one case cannot be read into another case except as provided under the Qanun-e-Shahadat Order, 1984 (QSO). The Supreme Court expressed a similar view in a case titled as Nur Elahi v. The State and others (PLD 1966 SC 708) the relevant part of which reads as under:

"The question then is what should be the procedure to be adopted by the learned trial Judge in disposing of these two cases. It has been conceded by the learned Advocate-General as well as by Ch. Nazir Ahmad Khan who appeared for the three accused persons in the complaint case, that paragraph 8 of the judgment of the learned Single Judge, in so far as it directed that witnesses should be examined only once and their statements read out as evidence in the other case, is not supportable in law. To that extent, the appeal is well-founded and must succeed on this point."

The Supreme Court in a subsequent case titled as Muhammad Sarwar and others v. Khushi Muhammad and another 2008 SCMR 350 reiterated the abovementioned view, and the relevant excerpt reads as under:

"6....In the absence of any exceptional circumstances, the evidence recorded in one case may not hold good for the other case. The trial Court did not give any special reasons as to why it was not practicable or convenient to record the evidence in both the cases separately...."

Likewise, the Supreme Court in a more recent case titled as Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148) reaffirmed the aforenoted position of law and its relevant passage is reproduced below for ready reference:

"6.... It is admitted position that the learned Trial Court while convicting the appellant had relied upon the medical evidence comprising the postmortem report and the statement of the doctor in the earlier trial of the three co-accused of the appellant but the same was never exhibited during the current trial of the appellant. This Court in the case of Nur Elahi v. Ikram ul Haq and State (PLD 1966 SC 708) has categorically held that "witnesses should be examined only once and their statements read out as evidence in the other case is not supportable in law". It was further held that "every criminal proceeding is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision and if the court takes into consideration evidence recorded in another case or a finding recorded therein the judgment is vitiated." The judgment in Nur Elahi supra case was further reiterated by this Court in Muhammad Sarwar v. Khushi Muhammad (2008 SCMR 350) wherein it has been held that "the evidence recorded in one case may not hold good for the other case." In view of the law laid down by this Court, it can safely be said that the learned Trial Court could not have relied upon the medical evidence that was brought on record in the earlier trial of the three co-accused of the appellant....."

1. Another noteworthy aspect of the case is that there are contradictions in the testimonies of Muhammad Naeem ASI (PW-1) and Shams-ul-Akbar (IO/PW-2) regarding the exact time of occurrence. The PW-1, during cross-examination, deposed that the police officials along with the appellant departed from police station CTD at about 2:15 pm whereas the PW-2 in his cross-examination deposed that they left the police station soon after the disclosure of appellant in physical remand and reached the place of recovery at about 3 pm. However, according to the complaint as well as FIR the time of occurrence is stated as 2:15 pm and at that time the appellant purportedly entered the graveyard and got recovered the pistol (Ex. P1). Thus, the version advanced by both the PWs is in direct contradiction with their own complaint and FIR. The said PWs accompanied the appellant in the whole process and witnessed the entire recovery proceedings, so their contradictory statements regarding time of occurrence cannot be overlooked as mere minor discrepancies. Even there is nothing on record to corroborate the assertions of PW-1 and PW-2 regarding the time of departure/arrival from the police station. There is another contradiction regarding the item in which the pistol (Ex. P1) was wrapped when it was recovered from the graveyard. As per the complaint and FIR the said pistol was wrapped in an envelope of blue colour whereas the PW-1 deposed (in cross-examination) that it was wrapped in a shopper of black colour and the IO/PW-2 deposed (in examination-in-chief) that it was wrapped in a shopper of blue colour. These contradictions raise serious doubts on the credibility of prosecution's witnesses.

2. Further, certain crucial documents were not properly exhibited during trial. The recovery memo. of the pistol (Ex. P1) was not exhibited and labeled with letters. Likewise, the complaint and FIR of the instant case were not exhibited and labeled, but: originals of the same are appended with the record of the case. The trial court, in the impugned judgment, referred to the foregoing documents with certain exhibits/labels (marked with letters), but the record is conspicuously clear regarding non-existence of such exhibits/labels on those documents. The only document which was properly exhibited and marked with letter is the un-scaled site-plan of place of recovery i.e. Ex. PA.

3. As a result of the above discussion, this Court concludes that the prosecution did not prove its case against the appellant beyond reasonable doubt. It is reasonably probable that the appellant neither made any disclosure in custody of police nor led them to the place of recovery. Further, the evidence of the prosecution is neither confidence inspiring nor unimpeachable. Thus, the appellant is entitled to the benefit of doubt. In this regard reference is made to the following judgments:

i. Ahmad Ali and another v. The State (2023 SCMR 781)

"12. Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit. not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the cases reported as Tajamal Hussain v. The State (2022 SCMR 1567), Sajjad Hussain v. The State (2022 SCMR 1540), Abdul Ghafoor v. The State (2022 SCMR 1527 SC), Kashif Ali v. The State (2022 SCMR 1515), Muhammad Ashraf v. The State (2022 SCMR 1328), Khalid Mehmood v. The State (2022 SCMR 1148), Muhammad Sami Ullah v. The State (2022 SCMR 998), Bashir Muhammad Khan v. The State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. The State (2021 SCMR 736), Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State (PLD 2019 SC 64), Hashim Qasim v. The State (2017 SCMR 986), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Zaman v. The State (2014 SCMR 749 SC), Khalid Mehmood v. The State (2011 SCMR 664), Muhammad Akram v. The State (2009 SCMR 230), Faheem Ahmed. Farooqui v. The State (2008 SCMR 1572), Ghulam Qadir v. The State (2008 SCMR 1221) and Tariq Pervaiz v. The State (1995 SCMR 1345)."'

(ii) Mst. Hajira Bibi alias Seema and another v. Abdul Qaseem and another (2023 SCMR 870)

"For the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused."

iii. Bashir Muhammad Khan v. The State (2022 SCMR 986)

"It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt."

iv. Atif Zareef and others v. The State (PLD 2021 SC 550)

"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. Releasing a guilty by mistake is better than punishing an innocent by mistake. We, therefore, accept this appeal to the extent of appellant Nafees Ahmad, set aside his conviction and sentence, and acquit him of the charge by extending him the benefit of doubt." (Emphasis added).

2025 P Cr. L J 425

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Faisal Maqbool Shaikh---Petitioner

Versus

Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 2 others---Respondents

Writ Petition No. 2141 of 2023, decided on 20th July, 2023.

(a) Passports Rules, 2021---

----Rr. 21 & 22---Penal Code (XLV of 1860), Ss. 420, 468, 471, 477-A & 109---Foreign Exchange Regulation Act (VII of 1947), Ss. 5 & 23---Passport Control List (PCL)---Planing name of person on PCL---Pre-conditions---Petitioner was alleged to have committed offences of cheating, forgery, using a forged document, abetment, falsification of accounts and violation of foreign exchange restrictions---Authorities placed name of petitioner on Passport Control List---Validity---In the instant case there was no allegation that the petitioner was ever involved in anti-state activities or his visit to foreign countries was considered to be prejudicial to the State interest---Petitioner had never been refused the issuance of passport, so his case did not fall under the criteria mentioned in R.22 of the Passports Rules, 2021---As per R.22(1), the Federal Government was vested withthe powers to regulate the departure from and entry into Pakistan and also visit to foreign countries under the Act but in the instant case no approval of the Federal Government had been obtained---Allegedly, as per S.8(a) of Offences in Respect of Banks (Special Courts) Ordinance, 1984, accused could not depart from Pakistan or be employed by any person after a Special Court had taken cognizance of a scheduled offence alleged to have been committed by an accused person, and such person would not, depart from Pakistan until the case had been finally decided by the Special Court---In the case in hand, the police had not submitted challan, so Trial Court had not taken cognizance of the matter---In the instant matter liberties of a senior citizen had been curtailed on the ground of registration of FIR but challan/report under S.173, Cr.P.C, had not been submitted since last one year---Non-submission of challan within stipulated period had highly been deprecated by the Superior Courts---Retention of petitioner's name on Passport Control List was violative of his fundamental rights to due process, liberty, life, and freedom of movement which were guaranteed by the Constitution---Petition was allowed accordingly.

Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427; Muhammad Umer Mangrio v. The State 2014 MLD 1813; Haq Nawaz and others v. The State and others 2000 SCMR 785; Adnan Prince v. The State through P.G., Punjab and another PLD 2017 SC 147; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590; 2006 SCMR 1547; Government of Pakistan and another v. Dada Amir Haider Khan PlD 1987 SC 504; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642; Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 6 others, PLD 2023 Lahore 359; Farah Mazhar and 3 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others PLD 2022 Lah. 119; Sadaf Sharjeel and another v. National Accountability Bureau (Sindh) through Director General and another 2022 YLR 2441; Ali Muhammad Turab v. Federation of Pakistan and 2 others PLD 2020 Isl. 454; Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others, PLD 2019 Isl. 316; Shabana Noor Ahmed v. Director-General Immigration and Passport, Islamabad and others PLD 2019 Sindh 456; Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior and others 2017 PCr.LJ 1569; Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Interior and 3 others, 2016 CLC 1534; Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2016 Sindh 388; Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389; Riaz Ahmed v. Government of Pakistan and others PLD 2014 Isl. 29; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior PLD 1997 Lahore 617 rel.

(b) Administration of justice---

----If law requires a particular thing to be done in a particular manner, it has to be done accordingly otherwise it will be non-compliance with the legislative intent.

Zia ur Rehman v. Syed Ahmad and others 2014 SCMR 1015; Federation of Pakistan and another v. E-Movers (Pvt) Ltd. and another 2022 SCMR 1021; PLD 2016 SC 995; 2017 SCMR 713; 2017 SCMR 1427; PLD 2018 SC 189 and PLD 2017 Isl. 64 rel.

Raja Abdul Qadeer Janjua, A. Ahad Khokher, Malik Muhammad Fiaz Kandwal and Tahir Hussain Anchan for Petitioner.

Raja Rizwan Abbasi, Special Prosecutor, FIA.

Malik Muhammad Iqbal Kallue, Assistant Attorney General.

Syed Rizwan Shah, Deputy Director, FIA, C.B.C., Islamabad.

Muhamad Nadeem Abbasi, Assistant Director, FIA, C.B.C., Islamabad.

Mir Fakhar Abbas, ASI, FIA/C.B.C.

Order

Tariq Mehmood Jahangiri, J.--- The petitioner, through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged notification dated 23.01.2023, issued by Director, F.I.A. Islamabad, whereby his name has been placed on the Passport Control List ("PCL").

1. Succinctly stated facts of the matter are that respondent No.2, conducted an inquiry and registered a case against the petitioner vide FIR No.38 of 2022, dated 06.10.2022, under sections 420, 468, 471, 477-A, 109, P.P.C. read with 5, 23 FER Act, 1947, Police Station FIA, CBC, Islamabad; bail before arrest of the petitioner was confirmed by the learned Special Judge Central, Islamabad but later on respondents placed his name on PCL, hence the instant writ petition.

2. Learned counsel for the petitioner, inter alia, contends that impugned action of respondents is discriminatory and violative of the provisions of the Constitution, fundamental rights of the petitioner have been jeopardized; impugned action of respondents restricting the movement of the petitioner is unwarranted, unlawful and illegal, hence is liable to be set aside.

3. Conversely, learned Assistant Attorney General assisted by learned Special Prosecutor, F.I.A. has controverted the arguments advanced by learned counsel for the petitioner and has stated that petitioner was on bail before arrest and in order to restrain him from fleeing abroad his name was placed on PCL just to ensure his presence for completion of investigation; fundamental rights of the petitioner have not been infringed and has prayed for dismissal of instant writ petition.

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

5. F.I.A. has filed report / parawise comments, wherein it is mentioned that after enquiry No. 105/2022, dated 05.08.2022, a case was registered by Police Station, F.I.A. Commercial Banking Circle, Islamabad vide FIR No.38, dated 06.10.2022, under Sections 420, 468, 471, 477-A, 109 P.P.C. read with 5, 23 FER Act, 1947; the petitioner is nominated accused; he was cosignatory in Merchant account / Commercial account No.074188300400 titled "Naya Pakistan" opened by Pakistan Tehreek-e-Insaf at United Bank Limited, Jinnah Avenue Branch, Islamabad, he has signed 30 Debit Authorities for transfer of funds from said account for the period 07.03.2013 to 10.06.2015.

6. Pre-arrest bail of the petitioner was confirmed; he joined the investigation; as the petitioner is nominated accused in the abovementioned case / FIR and in order to restrain him from fleeing abroad his name was placed on BL / Passport Control List vide Notification dated 23.01.2023, which is reproduced as under:

7. The Passport Rules, 2021, are issued vide S.R.O of Ministry of Interior, Islamabad dated 13.02.2022; section 22 of the rules ibid deals with the passport control list which is reproduced as under:

"22. Passport control list. (1) Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries of its citizens under the Act.

(2) The Division concerned and Directorate General shall prepare and maintain a PCL for placement of names and other record of individuals who have been refused passport facilities under these rules under Category 'A' and 'B' respectively with the following description, namely:-

(a) under category 'A', the names of those persons are placed who are involved in anti-state activities or whose visit to foreign countries is considered to be prejudicial to the State interest, or, whose visit abroad is banned from security point of view. The names in this list shall be placed and removed by the Additional Secretary of the Division concerned.

(b) under category 'B', the names of those persons are placed who have been refused passport under these rules other than anti-state activities specified in clause (a). The names of persons included in the category under this clause may also be placed on the recommendations of government agencies or departments;

(c) _______________________

(d) _______________________" (emphasis added)

1. In the aforementioned section, placing of names on the Passport Control List is the domain of the Federal Government, whereas the Division Concerned and Directorate General has to prepare and maintain PCL.

2. The criteria for placing of names is provided in category 'A' and 'B'. According to category 'A', names of those persons are placed who are involved in taking part in anti-state activities and under category 'B' names of persons are placed who have been refused passport under the rules other than anti-state activities specified in clause (a).

3. In the instant case there is no allegation that the petitioner was ever involved in anti-state activities or his visit to foreign countries has considered to be prejudicial to the State interest. The petitioner has never been refused the issuance of passport, so his case does not fall under the criteria mentioned in Rule 22 ibid.

4. It is mentioned in Rule 22(1) that the Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries under the Act but in the instant case no approval of the Federal government has been obtained.

5. According to principle of law laid down by the Hon.ble Supreme Court of Pakistan in a case titled as "Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others", (PLD 2016 SC 808), whenever a power is coferred on the Federal Government it is construed as a power given to the Prime Minister and the Federal Ministers / Cabinet to be exercised in the name of Federal Government. Reliance in this regard is also placed on the law laid down by the Hon.ble Supreme Court of Pakistan in following cases:

i. "Controller General of Accounts v. Fazal Ahmad, DAO EC (C and W Division Hangu) and others", (2021 SCMR 800)

ii. "Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others", (2020 SCMR 1)

1. Nothing has been placed on record that may indicate that the Federal Government has given approval regarding placing of name of the petitioner on Passport Control List (PCL) as provided in Rule 22 (1) of the Passport Rules, 2021.

2. In Rule 22(2), it is mentioned that the Division Concerned and Directorate General shall prepare and maintain PCL. "Directorate General" is defined in section 2(2) of the rules, which is as under:

"2(e). "Directorate General" means the Directorate General of Immigration and Passports established to regulate the matters relating to immigration and passports and matters ancillary thereto;

Whereas, Division concerned is defined in Rule 2(f) which is as under:

"2(f). "Division concerned" means the Division of the Federal Government to which business of the Directorate General stands allocated;

In the instant case no list for placing the name of the petitioner on PCL has been issued by the "Division Concerned" or "Directorate General".

1. Main objection taken by the respondents was that as per section 8(a) of Banks Ordinance, 1984, accused cannot depart from Pakistan or be employed by any person after a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, and such person shall not, without the permission of the Special Court, depart from Pakistan until the case has been finally decided by the Special Court.

2. But in the case in hand, the police has not submitted challan, so learned trial Court has not taken cognizance of the matter. Regarding taking of cognizance of the case, principle of law has been laid down in a case titled as "Ali Gohar and others v. Pervaiz Ahmed and others", (PLD 2020 SC 427) that:

"Given the above discussed, ordinary meaning of "cognizance of the case" and the judicial opinion rendered thereon, it can plainly be stated that ATC would be said to take "cognizance of the case" when on the receipt of the challan along with the material placed therewith by the prosecution, it takes judicial notice thereon by the conscious application of mind and takes positive steps to indicate that the trial of the case is to follow. These steps need not necessarily be recorded as judicial orders. What is essential is that the orders so passed or steps taken reflect that ATC is to proceed with the trial." (emphasis added)

1. In a case titled as "Muhammad Umer Mangrio v. The State", (2014 MLD 1813) it has also been held that "taking of cognizance means that after submission of challan along with material submitted, the Court decides to proceed in the matter in accordance with law". Reliance is also placed on a case titled as "Haq Nawaz and others v. The State and others", (2000 SCMR 785).

2. Special Prosecutor appearing on behalf of F.I.A. has apprised that challan / report under section 173 Cr.PC has not yet been submitted. It is provided in Section 173 Cr.P.C that challan be submitted within a period of fourteen (14) days from the date of recording of first information report but in the instant case challan has not been submitted after the delay of one year. Section 173 Cr.P.C is reproduced here for ready reference:

"173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor]-

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given:

[provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the 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 should not so commence], (2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.

[(5) Where the officer incharge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.]" (emphasis added)

In the instant matter liberties of a senior citizen has been curtailed on the ground of registration of FIR but challan / report under section 173 Cr.P.C has not been submitted since last one year; non-submission of challan within stipulated period has highly been deprecated by the Superior Courts. In this regard, law has been laid down by the Hon.ble Supreme Court of Pakistan in a case titled as "Adnan Prince v. The State through P.G., Punjab and another", (PLD 2017 SC 147) that:

"Thus even today charge sheets and submission of the challans before the competent courts in criminal cases are delayed beyond the mandatory statutory period for no reason much less plausible. Even interim challans as required under the law are not submitted within the statutory period. This conduct and attitude as well as performance of investigating, prosecution and detective agencies are absolutely un-acceptable and un-condonable because on the one hand, the law is disregarded while on the other hand, with the passage of time and long delay in the submission of challans, trial in each case is delayed and some of the witnesses including star witness either vanish being killed by the opponents, meet natural death or abandon their permanent abode/place of official duties due to transfer to another place or district making it a cumbersome job for the trial court to procure their attendance. This is one of the major contributory factor in the backlog, crisis/pendency of criminal cases. Such type of un-condonable delay in many cases becomes a cause of frustration both for the accused, the aggrieved complainant party and in some cases, the aggrieved party ordinarily takes the law into hands indulging in revengeful acts.

11. Accordingly, copy of this judgment be sent to the Attorney General of Pakistan, all the Prosecutor Generals of the Provinces and Islamabad Capital Territory-ICT, Advocate Generals of the four Provinces, DIGs/Addl. IGPs who are the Incharges of the Investigation Wings, Ministry of Interior, Govt. of Pakistan and all the Chief Secretaries of the four Provinces, all the Home Secretaries of the provinces, IGP-Islamabad, Chief Commissioner-ICT with the direction to hold deliberations and consultations and after giving deep thought to the subject matter, they should collectively and individually devise a proper strategy/policy to arrest this grave menace of delay and causes thereof and to immediately redress the same within the possible minimum time so that compliance is made with the mandatory provision of law and the relevant article of the Constitution in its true letter and spirit and to make accountable each and every officer who is found responsible for such delay and to show a visible and efficient performance in all three fields, failing which the public would be justified to protest that their money is going waste without any fruitful result even after introduction of the new system.

12. Copy of the actions taken along with minutes of each and every action taken, in view of above guidelines be submitted periodically to the Registrar of this Court with detailed information about the cases pending investigation before the Investigating Agency, the Prosecution Branch and to explain the delay in the submission of challans to the trial court". (emphasis added)

1. In another case titled as "Hakim Mumtaz Ahmed and another v. The State", (PLD 2002 SC 590) it has been held by the august Supreme Court of Pakistan that:

"9. Delay in submission of challan/police report under section 173, Cr.P.C. has been noticed invariably in the criminal cases, despite the fact that section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os. and high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.

10. Undoubtedly section 173, Cr.P.C. was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. ineffective by not following its spirit." (emphasis added)

The Inspector General of Police was directed to take action against the S.S.P, who failed to supervise investigation of the case effectively, as a result whereof submission of challan was delayed. Reliance is also placed on a case reported as 2006 SCMR 1547.

1. The name of the Petitioner has been placed the PCL only on the ground that he is an accused in the FIR No. 38/2022. Particularly when the challan/report under section 173 of Cr.P.C. 1898 has yet to be submitted in the court despite lapse of more than one year. The retention of Petitioner's name on PCL is violative of his fundamental rights to due process, liberty, life, and freedom of movement which are guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. The relevant Articles are reproduced herein below for ready reference:

"ARTICLE 4. Right of individuals to be dealt with in accordance with law, etc.

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular-

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not required him to do."

"ARTICLE 9. Security of Person. No person shall be deprived of life or liberty save in accordance with law."

"ARTICLE 10A. Right to Fair Trial. "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."

"ARTICLE 15. Freedom of Movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof."

Guidance in this regard is obtained from the laws and principles laid down by the superior courts of the country which are as under:

(i) Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504

"...As there is not much difference between Article 9 and Article 4(2)(a) and the former appears merely to be a deduction from the latter, Article 9, therefore, does not take the matter any further. However, Article 15, which confers upon every citizen, inter-alia, the right to enter and move freely throughout Pakistan, is of greater relevance. Article 15 guarantees to every citizen the right to remain in, enter and move freely throughout Pakistan. But his right to enter the country if he is leaving it or has gone abroad and his right to step out and step in the country are subject to reasonable restrictions imposed by law in the public interest. By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen) has the liberty to go abroad and to re-enter Pakistan unless he is, precluded from doing so under some law made in the public interest. The Passport Act, 1974, is one such law. Indeed its preamble itself recites that it has been enacted to regulate the departure from and entry into Pakistan and visits to foreign countries of citizens of Pakistan..."

"It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith."

"This Court in Messrs East and West Steamship Company v. Pakistan PLD 1958 SC 41 took a similar view Muhammad Munir, C.J. observing that "where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party."

"...Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest. Nothing of the kind has been stated and the only reason given while refusing the passport to the respondent is that he was a person of "communist thought"."

"Moreover, a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association." (emphasis added)

(ii) Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642

"Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner" (emphasis added)

(iii) Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570

"12. Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No. 1 in the ECL, thereby, restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose. More so, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law..." (emphasis added)

(iv) The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179

"6....The High Court's judgment was upheld by this Court vide judgment dated 13.4.2016. It was held that mere pendency of a criminal case cannot furnish a justification for restricting the movement of respondent No. 1...."

"13....It was not only in the case of Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617), where it was held that the liberty of a citizen cannot be curtailed by mere registering a criminal case, and that mere registration of FIR would not be a ground for depriving a citizen of the exercise of his constitutional right and further that registration of a criminal case has no nexus with and is extraneous to the object of the Exit from Pakistan (Control) Ordinance 1981, but even in the case of respondent No.1, in relation to the second Notification/Memorandum, this Court, while dismissing the petitioner's petition for leave, through judgment dated 13.4.2016, has held as follows:-

"5. Respondent No.1, no doubt, has been charged in a case mentioned above which is still pending adjudication in the competent Court of law. But mere pendency of a criminal case cannot furnish a justification for prohibiting her movement...." (emphasis added)

(v) Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 6 others, PLD 2023 Lahore 359

"25. From the above discussion it follows that the right to travel and to go abroad is an integral part of the fundamental rights to life and liberty and can be restricted only under a law made in the public interest. Here, the "law" means "enacted law", a law that is valid and non-discriminatory....And, in Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) the Supreme Court of Pakistan held that it should not be for an indefinite period or disproportionate to the mischief sought to be prevented. The Executive has no inherent power except what is conferred on it by law. An action which is mala fide or colourable or taken upon extraneous or irrelevant considerations is not regarded as action in accordance with law. Similarly, an action taken by an authority on no ground or without application of mind is unlawful and liable to be struck down."

"45. Administrative authorities are obliged to exercise the discretion vested in them in the public interest justly, fairly and reasonably...."

"48. There is no denying the fact that it is in the public interest that offenders should be brought to justice. It is more true in respect of the fugitives from law. Nevertheless, every case has its own facts and the Federal Government cannot cancel, impound, confiscate or for that matter blacklist a person mechanically. It must thoroughly examine each case before taking any action...."

"49. In Writ Petition No.5734/2021, the name of Petitioner Syed Anwar Shah was placed on the blacklist on the recommendation of FIA as he was a proclaimed offender in case FIR No. 107/2013. He has surrendered and the competent court has admitted him to bail. It is true that the case against him has not been decided so far but that cannot be a ground to deprive him of the right to travel abroad. The Deputy Attorney General stated at the bar that he would recommend removal of his name from the blacklist."

"50. In view of the above, these petitions are accepted. The blacklisting of both the Petitioners is declared to be without lawful authority and of no legal effect." (emphasis added)

(vi) Farah Mazhar and 3 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others, PLD 2022 Lahore 119

"12. None of the Petitioners are accused in any criminal case. It is trite law that even registration of a case or pendency of a criminal case is not sufficient to include or place one's name on the Exit Control List."

"24. The analysis of the facts of the instant case, the law of Pakistan developed and interpreted by the superior Courts of Pakistan and the international jurisprudence evolved on the subject leaves no doubt that the freedom and liberty are basic instinct of a human being. The very essence and existence of life is felt, acknowledged, recognized and endured with the act of movement. The act of movement starts in the womb of mother and ends with pronouncement of death. It is movement that distinguishes life from death and as such, the right to movement is cherished, protected and guarded from times immemorial....The discretion exercised by the executive is subject to judicial review. Article 15 of the Constitution is no exception. It recognizes the right to movement as a fundamental right subject to restrictions imposed by law in the public interest. This right is not limited to movement within Pakistan but extends and includes the right to leave and enter Pakistan. Right to movement is an inseparable part of right to life. The exercise of executive authority is subject to judicial review. The state must come forward with legitimate and lawful cogent, reasonable, justifiable and substantive reasons to clog the right to movement of a citizen. Conversely, if the impugned action speaks of malice or is based on mala fide or is otherwise taken arbitrarily and capriciously or without hearing or is unreasonable or without any substantive reason or is based on irrelevant, extraneous and presumptive considerations, the same is liable to be struck down." (emphasis added)

(vii) Sadaf Sharjeel and another v. National Accountability Bureau (Sindh) through Director General and another, 2022 YLR 2441 [Sindh]

"16. In the case of Rafique v. Federation of Pakistan (2018 MLD 597) it was held as under;

"It is now settled law by the Hon'ble Supreme Court that an accused right to travel abroad as guaranteed under Article 15 of the Constitution cannot be lightly trifled with even if he is an accused in a criminal case. In this respect, reliance is placed on the cases of Wajid Shams-ul-Hassan v. Federation of Pakistan (PLD 1997 Lahore P.617) Federal Government v. Ms. Ayan Ali (2017 SCMR 1179) and more recently unreported Supreme Court case of Dr. Asian Hussain v. Federation of Pakistan dated 29.08.2018."

"18. In this case the charge has not been framed despite a delay of over one year due to no fault of the petitioners, there are 12 accused and 56 PW's each of which will be subject to 12 separate cross-examinations by each counsel for the accused which would in effect mean that if we kept the names of the petitioners on the ECL until conclusion of the trial the petitioners would realistically have to remain in Pakistan for at least 3 years more as it is quite apparent that the trial is extremely unlikely to be completed within the next 3 years which in our view would be violative of the above mentioned fundamental rights of the petitioners especially as the petitioners have demonstrated when in the past they have been allowed to travel abroad they have always returned on time." (emphasis added)

(viii) Ali Muhammad Turab v. Federation of Pakistan and 2 others, PLD 2020 Islamabad 454

"The right of free movement whether within the country or across its frontiers, either in going out or in coming in, is a personal liberty within the meaning of Article 9 of the Constitution, which says that, "No person shall be deprived of life or liberty save in accordance with law." Freedom of movement is stated to be the essence of personal liberty. A citizen cannot be deprived of his fundamental right to travel abroad except according to the procedure established by law." (emphasis added)

(ix) Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others, PLD 2019 Islamabad 316

"4. Learned counsel further contended that mere pendency of inquiry does not entitle the National Accountability Bureau to place name of any person on ECL...."

"10. Admittedly, when name of an individual is placed on ECL, his freedom of movement is curbed and the same tantamount to violation of fundamental rights and in such state of affairs, the power/authority is to be exercised by the executive sparingly after taking into account relevant facts and circumstances. The referred recommendation is not to be followed by respondent No.1 i.e. Federation of Pakistan, in a mechanical fashion. In case reported as Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504), the august Apex Court observed that discretion vested in a public authority must be exercised fairly, reasonably and in good faith. The case law relied upon by the learned counsel for the petitioner is instructive in the present facts and circumstances. In Mst. Nasreen Begum and another v. Ministry of Interior, Government of Pakistan through its Secretary and 2 others (PLD 2012 Islamabad 17), this Court observed that mere pendency of inquiry would not justify denial of fundamental right of travelling abroad guaranteed to a citizen by the Constitution. Similar observation was made by the Hon'ble Lahore High Court in case reported as Inam Akbar v. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2016 Lahore 553).... The upshot of the above case law is that respondent No.1 while placing name of the petitioner on Exit Control List did not apply mind and acted mechanically on the recommendation of National Accountability Bureau. Even respondent No.2 does not seem to be earnest in the recommendation it made inasmuch as it has granted one time unconditional permission to the petitioner to travel abroad, whereas in the original recommendation, it is provided that it is apprehended that he might abscond. Even otherwise, there is nothing on record to show that the petitioner has not cooperated with respondent No.2. Moreover, as noted above, Respondent No.1 while issuing the impugned memorandum acted without application of mind." (emphasis added)

(x) Shabana Noor Ahmed v. Director-General Immigration and Passport, Islamabad and others, PLD 2019 Sindh 456

"11. Therefore, Clauses 51(B) and 21(b) of the Passport and Visa Manual 2006 could only have been invoked had Junaid been in Pakistan and wanting to leave Pakistan. Even in that case, it has been consistently held by the Superior Courts of this country in cases arising from the Exit From Pakistan (Control) Ordinance, 1981 that mere pendency of a criminal case is not sufficient justification for prohibiting a citizen from exiting Pakistan and for interfering with his Fundamental Right of freedom of movement enshrined in Article 15 of the Constitution of the Islamic Republic of Pakistan, 1973...."

"12. The pronouncement of law by the aforesaid case-law is that a citizen's Fundamental Right of freedom of movement under Article 15 of the Constitution cannot be impeded merely due to pendency of a criminal case against him...." (emphasis added)

(xi) Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior and others, 2017 PCr.LJ 1569

"29. There appears to be consensus of judicial opinion on the point that the mere fact that an inquiry or an investigation was being conducted by NAB or any other agency against the petitioner was not by itself a sufficient reason to place his name on E.C.L. Even the pendency of criminal proceedings, including proceedings before an Accountability Court (without an order or a request from the Court for the curtailment of an accused's freedom to travel abroad) is not considered a sufficient ground to place a citizen's name on E.C.L. While this has been the general trend of judicial pronouncements, yet each case has to be examined on its own merits, and the peculiar facts of a case may cause a Court of Constitutional causes to decline relief to a petitioner seeking to have his name removed from the E.C.L. (emphasis added)

(xii) Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Interior and 3 others, 2016 CLC 1534

"There is no doubt that freedom of movement or right to travel is fundamental right of a citizen as enshrined under Articles 4 and 9 of Constitution of Islamic Republic of Pakistan, 1973. Every citizen of Pakistan has the liberty to go abroad and return to Pakistan unless precluded from doing so, in the public interest..." (emphasis added)

(xiii) Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another, PLD 2016 Sindh 388

"Mr. Naek has rightly referred to the case-law developed by the superior Courts whereby a consistent view is taken that right of free movement which indeed includes the right of travelling abroad subject to reasonable restriction has been guaranteed under Article 15 of the Constitution of Islamic Republic of Pakistan and in case such right is to be curtailed by applying reasonable restriction then such power must be exercised fairly, reasonably and in good faith and the order whereby such restriction is imposed should not be passed mechanically on the request of any ministry or department and unless against the public interest such order must detail reason and should reflect application of mind" (emphasis added)

(xiv) Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others, PLD 2014 Sindh 389

"29....It is quite clear that registration of a criminal case or institution of criminal proceedings does not automatically imply that the accused should be disallowed to move outside Pakistan and or to put his name on E.C.L. Had it been the intention of legislature then it would have made the corresponding provisions in the Cr.P.C. or any other special enactments made for the trial of offences. Mere registration of FIR does not permit nor warrant the automatic inclusion of any such accused person on E.C.L. but once bail is granted, it is the province of that court to regulate the custody of that particular accused...."

"36....Let us remind to the learned Attorney General that according to the prosecution story the petitioner is also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country. If in any case, the accused is absconded, the law is not helpless but a procedure to deal such situation is already provided under the Criminal Procedure Code and other relevant laws...." (emphasis added)

(xv) Riaz Ahmed v. Government of Pakistan and others, PLD 2014 Islamabad 29

"7. Right to movement/travel is a fundamental right of every citizen guaranteed under Articles 4, 9 and 15 of the Constitution. It is universally recognized right enshrined in Article 12(4) "Everyone shall be free to leave any country, including his own" of the Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16th December, 1966 and enforced with effect from 23rd March, 1976. Therefore, no one could be allowed to deprive a citizen from his/her fundamental rights, save in accordance with due process of law..."

"9. The authorities are under obligation to solve the problems of the general public in a fair and just manner and to decide their applications within a reasonable time. They are not supposed to sit over the issues for indefinite period without any decision."

"10. In the instant case the act of respondents is sheer violation of fundamental rights, where the respondents have neither conducted any trial against petitioner in connection with his alleged involvement in terrorist activities nor has he been exonerated of the charges. The government authorities are the patrons of the citizen and they have to adhere to law for resolving the genuine issues of the aggrieved persons." (emphasis added)

(xvi) Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others, PLD 2010 Lahore 230

"26. The jurisprudence discussed above establishes that right to travel is part of human liberty as travel signifies freedom and liberty. Therefore, the right to travel outside the country is a fundamental right and an intrinsic part of right to liberty which is guaranteed under Article 9 of our Constitution."

"27. Taking this further, there is little doubt in saying that the world today has shrunk due to online connectivity, internet, media and faster means of travel. People today travel across the globe to pursue higher education, to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of the world. Travel, therefore, has become an integral part of modern life. Right to education, right to livelihood and right to carry out lawful. Profession are incomplete without having access and the right to travel to any part of the world and in particular to the educational or business centres of the world. To me right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to a meaningful, challenging, satisfying and purposeful life. Therefore, I hold right to international travel to be a right to life in addition to right to liberty...."

"32. Article 4 of the constitution also echoes the same right and further buttresses the procedural due process required when dealing with fundamental rights of a citizen. Articles 4 and 9 provide that a person shall not be deprived of life or liberty save in accordance with law. "Save in accordance with law" has a substantive and a procedural part. First, the Law must substantively qualify the test of being a "Law" made in the collective public interest and for common good, fully satisfying the basic fundamentals of law and having passed the test of fundamental rights provided in the Constitution. Second, the "law" or the action thereunder must also provide for procedural due process i.e., must abide by all the fundamental principles of law e.g., natural justice, right of hearing, lawful exercise of discretion, fairness, etc."

"33. The right to life and liberty of a citizen can only be restricted or abridged if it is in "accordance with law." `Law' here means Law that caters to larger collective public interest. Therefore, the fundamental right of an individual guaranteed under the constitution can only surrender and succumb to a lawful collective interest of the community or the society. Public Interest or collective community interest is a basket of various public interests including public morality, public order, public health, national security and foreign policy of the country besides fundamental rights of the others. Public interest is an essential ingredient of any law that proposes to take away, abridge or interfere with the fundamental rights of an individual...." (emphasis added)

(xvii) Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, PLD 1997 Lahore 617

"14. In view of the above discussion, I have no doubt in my mind that the right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgement of this fundamental right by the State through the legislative or an executive measure has to be tested on the touchstone of the Constitutional provisions. The life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law....The liberty of the petitioner could not be curtailed by mere registering a criminal case for which he may or may not be criminally liable. Mere registration of FIR in a criminal case cannot be a ground for depriving a citizen of the exercise of all fundamental and other Constitutional rights. The registration of a criminal case has no nexus with and is extraneous to the object of the Statute." (emphasis added)

1. It is settled principle of law that if law required a particular thing to be done in a particular manner, it had to be done accordingly, otherwise it would be non-compliance with the legislative intent. In this regard, reliance is placed on a case titled as "Zia ur Rehman v. Syed Ahmed Hussain and others", (2014 SCMR 1015).

2. In another case titled as "Federation of Pakistan and another v. E-Movers (Pvt) Ltd and another", (2022 SCMR 1021), it is held by the Hon.ble Supreme Court of Pakistan that:

"24. The Constitution of the Islamic Republic of Pakistan ('Constitution') is the fountainhead of the rule of law in Pakistan.'To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. 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. The right to be treated in accordance with law was invigorated and bolstered when the Constitution was amended to provide an additional Fundamental Right by adding Article 10A to the Constitution stipulating 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. The due process requirement must be met in the determination of rights and obligations. The Constitution does not define due process. Therefore, it would not be appropriate to limit its scope by defining it. But this does not mean that the due process requirement is a meaningless concept. Rather due process incorporates universally accepted standards of justice and is not dependent upon any law or laws. It is an all encompassing expression which may not be curtailed with reference to particular laws. Due process is to be understood holistically by keeping in mind the entire Constitution, which excludes arbitrary power, authoritarianism and autocratic rule." (emphasis added)

2025 P Cr. L J 498

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Imran Ahmed Khan Niazi---Petitioner

Versus

The State and another---Respondents

Criminal Miscellaneous No. 1948-B of 2024, decided on 20th November, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409 & 109---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, criminal misconduct---Bail, grant of---Further inquiry---Rule of consistency---Allegations against the petitioner was that he and his wife received a gift from Crown Prince of Saudi Arabia but failed to deposit the gift with the Toshakhana and purchased the same by undervaluing its price---Bail of co-accused-wife of petitioner had been accepted---Office Memorandum in question described that the non-deposit of a gift with the Toshakhana within a prescribed time limit was required to be met with "appropriate punitive action" under "the relevant rules."---Said Office Memorandum dated 18.03.2023 was to have effect from 22.02.2023---Prosecutor, submitted very fairly earlier that the Office Memorandum dated 18.03.2023 did not have retrospective effect so as to be made applicable to the case against the petitioner which took place almost two years before the said Office Memorandum was issued---Fact that the ealier Office Memorandum dated 18.12.2018 did not make the non-deposit of the gift with the Toshakhana/Cabinet Division liable to "appropriate action" under "the relevant rules," on tentative view, made the case against the petitioner as one of further inquiry---Petitioner's case was not on higher pedestal from that of his wife who had already been granted post-arrest bail by the High Court as the report under S.173, Cr.P.C placed both of them in the same category---Entrustment of the jewellery set (gift) was alleged against the petitioner as well as his wife---However, the receipt for the payment had admittedly been issued to the petitioner's wife and not to the petitioner---Petitioner was 72 years of age---In this case, he was arrested on 13.07.2024 and remained incarcerated in prison for more than four months---Investigation Officer had not felt the need to question the petitioner after the entrustment of the case to Federal Investigation Agency (FIA)---Since the reference against the petitioner had earlier been filed before Accountability Court, that would mean that the investigation in the case was complete---Charge against the petitioner had not been framed as yet, therefore, the conclusion of the trial was not in sight---Evidence in the case was largely documentary in nature which was already in the prosecution's possession---Hence, there was no chance of the petitioner tampering with such evidence---Present case was one of further inquiry---Post arrest bail was allowed, in circumstances.

Barrister Salman Safdar, Ch. Khalid Yousaf, Barrister Khadija Siddiqi, Shahina Shahab-ud-Din, Ayesha Khalid for Petitioner assisted by Mirza Asim Baig, Murtaza Hussain Turi, Fateh Ullah Burki, Dr. Ali Imran, Ansar Kayani, Sardar Masroof Khan and Amina Ali for Petitioner.

Umair Majeed Malik and Zulfiqar Abbas Naqvi, Special Prosecutors assisted by Mudassar Hussain Malik and M. Bilal Butt, along with M. Afzal Khan Niazi, Deputy Director, ACC, Shahid Parwaiz Malik, IO/Assistant Director, ACC, FIA, Islamabad.

Order

Miangul Hassan Aurangzeb, J.---Through the instant criminal miscellaneous petition, the petitioner, Imran Ahmad Khan Niazi, seeks the grant of post-arrest bail in FIA case No.SJC-1/T/01/2024, dated 18.09.2024, registered under Sections 109 and 409 of the Pakistan Penal Code, 1860 ("P.P.C.") read with Section 5(2) of the Prevention of Corruption Act, 1947 ("the 1947 Act"), at Police Station, FIA, Anti-Corruption, Islamabad.

1. The petitioner is the former Prime Minister of Pakistan. In this case, he was arrested on 13.07.2024 by National Accountability Bureau ("NAB") but has remained incarcerated in different other cases since 05.08.2023. The investigation conducted by NAB finally led to the filing of Accountability Reference No.01/2024 before the learned Accountability Court-II, Islamabad on 19.07.2024. The petitioner and his wife, Bushra Imran Khan, were arrayed as accused in the said reference. The petitioner and his wife had filed post-arrest bail petition before the learned Accountability Court-II, Islamabad.

2. As a result of the judgment dated 06.09.2024 passed by the Hon'ble Supreme Court in Intra Court Appeals Nos. 2, 3 and 4/2023, amendments made in the National Accountability Ordinance, 1999 through the National Accountability (Amendment) Act, 2023, National Accountability (Second Amendment) Act, 2023 and National Accountability (Amendment) Act, 2022 were held to be lawful as a consequence of which the said Accountability Reference No.01/2024 did not fall within the jurisdiction of the learned Accountability Court. Vide order dated 09.09.2024, the learned Accountability Court-II, Islamabad turned down the request made by the learned counsel for the petitioner to decide the pending post-arrest bail petition. The learned Accountability Court-II, Islamabad, vide order dated 09.09.2024, referred the case to the Senior Special Judge (Central-I), Islamabad and the parties were directed to appear before the said Court on 10.09.2024. On 18.09.2024, the case against the petitioner and his wife was registered as FIA Case No.SJC-1/T/01/2024.

3. On 12.09.2024, the petitioner and his wife had filed Writ Petition No.2716/2024 before this Court seeking a direction to the Special Judge (Central-I), Islamabad to decide the pending post-arrest bail petitions expeditiously. The said writ petition was disposed of vide order dated 18.09.2024. The operative part whereof is reproduced herein below:-

"7. The National Judicial (Policy Making) Commission has already issued a policy according to which "bail applications under Section 497 of Cr.P.C shall be decided not beyond a period of 3 days by the Magistrate, 5 days by the Court of Sessions and 7 days by the High Court." To a Special Court, the timeline given for the Court of Sessions would apply. Therefore, I deem it appropriate to dispose of the instant petition with the observation that the learned trial Court may decide the pending post-arrest bail petitions by bearing in mind the mandate under the said Policy."

1. The Senior Special Judge (Central-I), Islamabad vide order dated 30.09.2024 dismissed the post-arrest bail petitions filed by the petitioner and his wife. On 03.10.2024, the petitioner's wife filed Crl. Misc. No.1744-B/2024 before this Court seeking post-arrest bail in FIA Case No.SJC-1/T/01/2024 dated 18.09.2024, registered under Sections 109 and 409 P.P.C. read with Section 5 of the 1947 Act. Vide order dated 23.10.2024, the said petition was accepted and the petitioner's wife was admitted to post-arrest bail. On 31.10.2024, the instant post-arrest bail petition was filed seeking the petitioner's release on bail.

2. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that on account of being the former Prime Minister, the petitioner has been subjected to political victimization by the registration of several cases against him; that the petitioner has remained incarcerated since 05.08.2023 in different cases; that in the instant case, he was arrested by NAB on 13.07.2024 and has remained incarcerated for more than four months; that the investigation in the case against him is complete and his custody is not required for any further questioning; that the petitioner is more than 72 years of age; that after the case was referred by learned Accountability Court-II, Islamabad to the Federal Investigation Agency ("FIA") on 09.09.2024, FIA completed the probe against the petitioner and his wife on 20.09.2024; that the prosecution has been selective in nominating the accused in the case; that there is a substantial delay of three years in the registration of the case against the petitioner; that the statements of five witnesses against the petitioner have also been recorded with a substantial delay; and that whether the petitioner exerted pressure and undue influence on the private appraiser, Sohaib Abbasi, through the ex-Comptroller to the Prime Minister's Office, Syed Inam Ullah Shah, for the jewellery set gifted to the petitioner's wife to be undervalued has to be proved in the proceedings before the learned trial Court.

3. Learned counsel for the petitioner went through the contents of the report under Section 173 of the Code of Criminal Procedure, 1898 ("Cr.P.C") and submitted that at best the case against the petitioner was that he did not deposit the jewellery set with the Cabinet Division / Toshakhana; that there is no allegation against the petitioner to the effect that the factum as to receipt of the jewellery set had not been reported to the Cabinet Division / Toshakhana; that the Cabinet Division's Office Memorandum ("O.M.") dated 18.12.2018 which was in vogue when the jewellery set was gifted to the petitioner's wife does not make the non-deposit of a gift liable to "appropriate action;" and that when the said jewellery set was gifted to the petitioner's wife, "relevant rules" had not been framed for taking action against an individual who had not reported the receipt of a gift; and that since this Court vide order dated 23.10.2024 granted post-arrest bail to the petitioner's wife in the very same case, therefore under the principle of consistency, post-arrest bail ought to be granted to the petitioner.

4. On the other hand, learned Special Prosecutor, FIA came up with a well prepared brief on the case, as before. He relied on the compendium of office memoranda containing the procedure for the acceptance of gifts and their disposal. He further submitted that the Cabinet Division's O.M. dated 18.12.2018 was in force when the petitioner's wife retained the jewellery set which was gifted to her by the Crown Prince of Kingdom of Saudi Arabia; that the said O.M. has the legal status of a policy decision; that under the applicable procedure, the petitioner and his wife were duty bound to have deposited the jewellery set with the Cabinet Division / Toshakhana; that although the then Deputy Military Secretary, on 18.05.2021, had declared the factum as to the receipt of the said gift to the Section Officer of the Toshakhana along with a request for price assessment, however, the said set was never deposited with the Cabinet Division / Toshakhana; that the Toshakhana Section had engaged a private appraiser, namely Sohaib Abbasi, who has become an approver against the petitioner and his wife; that the said private appraiser also provided an undervalued assessment on 26.05.2021 on the basis of pressure exerted by the petitioner and his wife; that on 27.05.2021, the Collectorate of Customs had also provided an undervalued price assessment; that on 28.05.2021, the undervalued price assessment was reported by the Cabinet Division to the Deputy Military Secretary; that on the basis of such undervalued price assessment, the petitioner's wife, on 08.07.2021 deposited an amount against challan No.2043 with the Toshakhana; that by retaining the said jewellery set, the petitioner in collusion with his wife had not just violated the procedure for the acceptance and disposal of gifts, but had also committed an offence under Section 409 P.P.C. read with Section 5(2) of the 1947 Act; that the petitioner was bound to declare and deposit the gift received by his wife during a foreign visit; and that the principle of consistency will not apply in the instant case as the role of the petitioner in committing the offence was different from that of his wife.

5. Learned Special Prosecutor, FIA further submitted that the offence of criminal breach of trust under Section 409 P.P.C. carries a sentence of imprisonment for life or with a sentence of either description for a term which may extend to ten years; that the petitioner is not entitled to the concession of bail since he has already been convicted in a similar case by the Accountability Court-I, Islamabad vide judgment dated 31.01.2024; that although the sentence awarded to the petitioner has been suspended by the appellate forum but such suspension does not wipeout the petitioner's conviction; and that since the petitioner has a criminal history, he is not entitled to the concession of post-arrest bail. Learned Special Prosecutor, FIA prayed for the post-arrest bail to be dismissed.

6. I have heard the contentions of the learned counsel for the petitioner as well as the learned Special Prosecutor, FIA and have perused the record with their able assistance.

7. The gist of the allegation against the petitioner is that during the period between 07.05.2021 to 10.05.2021 when the petitioner, as the Prime Minister, along with his wife visited the Kingdom of Saudi Arabia, his wife received a Bvlgari jewellery set as a gift from the Crown Prince of the said Kingdom; that although the receipt of the said gift was reported to the Cabinet Division, the same was not deposited with the Toshakhana / Cabinet Division and its possession was retained by the petitioner and his wife; that as a result of the influence exerted by the petitioner and his wife on the private appraiser, namely Sohaib Abbasi, through the ex-Comptroller to the Prime Minister's Office, Syed Inam Ullah Shah, the jewellery set was assessed at undervalue so that the petitioner and his wife could purchase the same by paying 50% of the undervalued amount; and that the petitioner's wife by paying 50% of the undervalued amount, caused a loss amounting to Rs.32,851,300/- to the national exchequer.

8. The "procedure for the acceptance and disposal of gifts" contained in the Cabinet Division's O.M. dated 18.12.2018 was in force when the said jewellery set was allegedly gifted to the petitioner's wife. In the report under Section 173 Cr.P.C, stress has been laid on clause (1) of the said procedure to bring home the point that the petitioner was not just liable to declare the receipt of the gift but also to deposit the same with the Toshakhana / Cabinet Division, and that such non-deposit would entail criminal liability under Section 409 P.P.C..

9. For the purposes of clarity, clause (1) of the said O.M. dated 18.12.2018 is reproduced herein below:-

"(1) The responsibility rest with the individual recipient to report receipt of the gift(s) to Cabinet Division. All gifts received by the Government/Public functionaries irrespective of their prices, must be reported and deposited immediately in Toshakhana of the Cabinet Division, Government of Pakistan. If it is found, on checking, that an individual has not reported the receipt of a gift, appropriate action will be taken against him under the relevant rules."

(Emphasis added)

1. Now, it has not been denied that the factum as to the receipt of the jewellery set had been declared by the then Deputy Military Secretary of the former Prime Minister to the Toshakhana / Cabinet Division on 18.05.2021. This is explicitly mentioned in the report under Section 173, Cr.P.C. The reason why criminal prosecution is taking place against the petitioner and his wife is that the said jewellery set is alleged to have never been deposited in the Toshakhana / Cabinet Division. But prima facie such non-deposit does not entail "appropriate action" under "the relevant rules" in terms of the O.M. dated 18.12.2018. It is the non-reporting of the receipt of the gift that entails appropriate action under the rules. In order to overcome this, the Cabinet Division on 18.03.2023 issued an O.M., clause (1) whereof is substantially the same as clause (1) of the O.M. dated 18.12.2018 except that the non-deposit of a gift with the Toshakhana within a prescribed time limit is required to be met with "appropriate punitive action" under "the relevant rules." For the purposes of clarity, clause (1) of the O.M. dated 18.03.2023 is reproduced herein below:-

"(1) The responsibility rests with the individual recipient to report receipt of the gift(s) to Cabinet Division. All gifts received by the Government/Public functionaries irrespective of their prices, must be reported and deposited in Toshakhana of the Cabinet Division, Government of Pakistan within 30 days of receipt of the gift(s) or 30 days from the date of return to Pakistan in case of foreign visit. If it is found, on checking, that an individual has not reported the receipt of gift(s) to Cabinet Division and deposited it in Toshakhana within the time limit, appropriate punitive action will be taken against him / her under the relevant rules."

(Emphasis added)

1. The said O.M. dated 18.03.2023 was to have effect from 22.02.2023. Learned Special Prosecutor, FIA submitted very fairly that the said O.M. dated 18.03.2023 does not have retrospective effect so as to be made applicable to the case against the petitioner which took place almost two years before the said O.M. was issued. The fact that the O.M. dated 18.12.2018 does not make the non-deposit of the gift with the Toshakhana / Cabinet Division liable to "appropriate action" under "the relevant rules," this would, in my tentative view, make the case against the petitioner as one of further inquiry.

2. Much emphasis was laid by the learned Special Prosecutor, FIA on the fact that the petitioner and his wife had earlier been convicted by Accountability Court-I, Islamabad vide judgment dated 31.01.2024 for having retained a gift of a Graff jewellery set made to petitioner's wife by the Crown Prince of the Kingdom of Saudi Arabia on 18.09.2020. Learned Special Prosecutor, FIA was correct that the suspension of the sentence imposed on the petitioner does not wipeout his conviction but it ought to be borne in mind that when the learned appellate Court suspended the petitioner's sentence vide order dated 01.04.2024 passed in Crl. Misc. No.107/2024 in Crl. Appeal No.75/2024, it was solely on the basis of the no-objection to the suspension of the sentence by the learned counsel for the NAB and not as a result of an inter-parte hearing. The judgment of the learned Accountability Court-I, Islamabad, whereby the petitioner was convicted cannot be held to have attained finality as an appeal against the same is pending before this Court. Moreover, the learned counsel for NAB has also made a statement before the Court hearing the appeal against the petitioner's conviction that the very judgment of Accountability Court-I, Islamabad be set-aside on account of the procedural irregularities during the trial and the matter be remanded to the trial Court.

3. The learned Special Prosecutor, FIA also laid stress on the statements recorded under Section 161, Cr.P.C before NAB's Investigation Officer that undue influence and pressure was exerted by the petitioner and his wife on the private appraiser, Sohaib Abbasi through the ex-Comptroller to the Prime Minister's Office, Syed Inam Ullah Shah so that the jewellery set is undervalued enabling the petitioner's wife to purchase the same at a reduced rate. It is not FIA's case that the petitioner or his wife had directly extended threats or had pressurized the private appraiser to undervalue the jewellery set. The private appraiser's evidence has not been recorded by the learned trial Court as yet. Once such statement is recorded, it would be for the learned trial Court to determine its veracity and evidentiary value since he was earlier an accomplice and now an approver on the basis of pardon granted to him by the Chairman, NAB under Section 26 of the National Accountability Ordinance, 1999 on 23.05.2024. No such pardon appears to have been granted to the private appraiser in terms of Section 337, Cr.P.C by the FIA authorities, although apparently his statement under Section 164 has been recorded. It remains to be seen whether the private appraiser and the ex-Comptroller of Prime Minister's Office give evidence which is consistent with their statements under Section 161, Cr.P.C.

2025 P Cr. L J 622

[Islamabad]

Before Aamer Farooq, C.J and Saman Rafat Imtiaz, J

Abdul Hadi Chatta and another---Apellants

Versus

The State---Respondent

Criminal Revision No. 155 of 2024, decided on 31st October, 2024.

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

----S. 7---Penal Code (XLV of 1860), Ss. 186, 353, 506, 148 & 149---Criminal Procedure Code (V of 1898), S.167---Act of terrorism, obstructing and assault on public servant in discharge of public functions, criminal intimidation and rioting armed with deadly weapons---Physical remand---Copy of order not sent to Sessions Judge---Accused assailed order passed by Trial Court extending physical remand without sending copy of the order to Sessions Judge---Validity---It is a rule that every time when physical custody is granted to police, order is to be remitted to Sessions Judge for information and perusal---This rule had not been followed which should be complied with in letter and spirit---Sessions Judge exercises supervisory jurisdiction with respect to all courts under his jurisdiction and also acts as a check mechanism---Order for grant of physical custody is not to be taken lightly inasmuch liberty of a person is involved and there has to be application of mind while deciding request of police authorities---Police authorities are also to make specific request as to why physical custody of a person is required---High Court set aside the order of grant of physical remand of accused to police, as the same did not comply with the requisite law---Revision was allowed, in circumstances.

The State through Advocate General, ICT v. Additional Sessions Judge and 2 others 2023 PCr.LJ 83 rel.

Qaiser Imam Ch., Zainab Janjua, Riasat Ali Azad, Abdul Wahid Qureshi, Asif Ali Tamboli, Muhammad Bilal Mughal and Muhammad Asif Gujjar for Petitioners.

Wajid Munir Mughal, Deputy District Public Prosecutor along with Zahid Akhtar, Inspector I.O. for the State.

Order

Aamer Farooq, C.J.---The petitioners are accused persons in case FIR No.1161/2024, dated 25.10.2024, under sections 148, 149, 186, 353, 506(ii), P.P.C, read with section 7 ATA, 1997, Police Station Aabpara, Islamabad. They are aggrieved of the order passed by Judge, Special Court-I (Anti-Terrorism), Islamabad, whereby physical custody of 03-days has been granted to the police.

1. Learned counsel for the petitioners, inter alia, contended that the reasons which prevailed with the Special Court-I, Anti-Terrorism, Islamabad while allowing physical custody to the police are against the settled principles laid down by this Court in various cases, including one by this Court in case titled The State through Advocate General, ICT v. Additional Sessions Judge and 2 others (2023 PCr.LJ 83).

2025 P Cr. L J 661

[Islamabad]

Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ

Malik Muhammad Umar Khan---Apellant

Versus

Mst. Saadia Bibi and others---Respondents

C.M. NO. 344 of 2023 in Criminal Appeal No. 213 of 2019, decided on 31st October, 2023.

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

----Ss.369 & 561-A---Pronouncement of judgment (of conviction)---Subsequent remedy, availing of---Application for correction or rectification or revision---Maintainability---Application moved by convicted person ('applicant') before High Court seeking correction/amendment of an error in the judgment---Applicant, after passing of the judgment of conviction by the High Court, had neither surrendered nor lodged himself the jail authorities in order to serve his sentence---Held, that unless the convicted person surrenders before the court and lodges in jail at the time of announcement of judgment of conviction, his application or appeal or revision is not entertainable by any of the courts, including the Supreme Court of Pakistan---A fugitive from law loses right of audience if he defies the orders of the Court for his surrender and or otherwise abuses its process---It is an essential condition of the administration of justice in a case affecting individual or individuals that the persons concerned should submit to due process of justice, which was not done in the present case---In the present case, applicanthas been convicted by the High /Appellate Court whereafter he has not surrendered before the court nor lodged to jail---Power under S.369, Cr.P.C., is only meant to correct the clerical/typographical mistake/error occurring inadvertently in the impugned judgment or order apparent on the face of the record and without such exception, no judgment or order of a Court could be reviewed/modified---Thus, any application for rectification/ correction of order / judgment, whether under S. 369 or S.561-A, Cr.P.C. is not entertainable by the office or any Court, unless the absconder has been taken into custody and is lodged in jail first---Application was dismissed, in circumstances.

Hayat Bakhsh v. The State 1981 SCMR 1; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Lavesh v. The State 2012 [8] SCC 730; Raja Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564; Fawad Ali v. the State 2019 SCMR 1641; Bahar Khan v. The State 1969 SCMR 81 and The State v. Daniyal alias Dani PLD 2015 SC 322 ref.

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

----S.497---Bail---Abscondance---Unexplained noticeable abscondance disentitles a person to the concession of bail notwithstanding the merits of the case---Accused, by his conduct, thwarts the investigation qua him in which valuable evidence like recoveries is simply lost or is made impossible to be collected by his conduct.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 ref.

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

----S.497---Bail---Absconder/fugitive offender---Different categories---There are different categories of absconder/fugitive offender: Firstly, the accused, who has absconded and failed to join the investigation or to surrender before the Court of law prior to conviction, in which case his rights could not be upheld unless he surrenders before the Court of competent jurisdiction or the police authorities, and is consequently not entitled to bail ;the second category pertains to those accused persons, whose sentences have been suspended under S.426, Cr.P.C., pending in appeal whereafter they abscond; in such cases the absconded accused are also not entitled to any concession of bail from any Court of law, unless they lodge in jail as their custody has been handed over to the surety while suspending their sentence, and even their bail orders stand ipso facto cancelled---Third category is the applicant who has been convicted by the High /Appellate Court whereafter he has not surrendered before the court nor is lodged to jail.

Lavesh v. The State 2012 [8] SCC 730; Raja Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564 and Fawad Ali v. the State 2019 SCMR 1641 ref.

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

----Ss.426, 497 & 498---Pronouncement of judgment (of conviction)---Subsequent remedy, availing of---Application for correction or rectification---Scope---Power of the Court in suspension of sentence under S.426, Cr.P.C, is not wider than the power to grant bail under Ss.497 and 498, Cr.P.C., rather it isnarrow---Appellant, who has absconded after suspension of his sentence, should have been lodged to jail prior fo acceptance of any of the application by the appellate Court---In said scenario, any application for rectification/correction of order / judgment, whether under S.369 or S.561-A, Cr.P.C. is not entertainable by the office or any Court, unless the absconder has been taken into custody and lodged in jail first---Application was dismissed, in circumstances.

Bahar Khan v. The State 1969 SCMR 81 ref.

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

----Ss.369 & 561-A---Civil Procedure Code (V of 1908), S. 114--- Pronouncement of judgment (of conviction)---Subsequent remedy availing of---Application for correction / rectification---High Court is not equipped with any power of review under the Criminal Procedure Code, 1898, as compared to S.114 of the Civil Procedure Code, 1908, and for this reason, once a judgment has been announced, the Court becomes functus officio---Language of S.369, Cr.P.C. confirms the same viewpoint, wherein the Legislature has applied a negative notion by using the phrase "no Court when it has signed its judgment shall alter or review the same, except to correct the clerical error".

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

----Ss.369 & 561-A---Pronouncement of judgment (of conviction)---Subsequent remedy, availing of---Application for correction or rectification or revision---Maintainability---Fugitive offender (post-conviction)---Application moved by convicted person ('applicant') before High Court seeking correction/amendment of an error in the judgment---Applicant, after passing of the judgment of conviction by the High Court, had neither surrendered nor lodged himself the jail authorities in order to serve his sentence---No application of any nature from a fugitive offender (post-conviction for any anticipatory bail, suspension of sentence, revival of his bail orders, or review, alteration, or correction of any order in sentence should be entertained under the fugitive offender surrender before the Court is lodged in jail---High Court, in order to convey the spirit of law, highlighted following factors in Urdu:

---Application was dismissed, in circumstances.

Fakhar Hayat Awan for Applicant.

Ansar Nawaz Mirza for Respondent.

Rabi Bin Tariq, State Counsel.

Murtaza Haral, S.I, P.S Shalimar, Islamabad.

Order

Mohsin Akhtar Kayani, J.---Through the instant application, the applicant Muhammad Zaman has prayed for amendment/ correction in judgment dated 26.04.2023, passed in Criminal Appeal No. 213-2019, whereby, the same was allowed by this Court vide judgment dated 15.06.2023, and the applicant Muhammad Zaman was convicted and sentenced to two years imprisonment with fine of Rs.50,000/-. He has also been extended the benefit of Section 382-B Cr.P.C., and sentenced to the following effect:-

Therefore, at this stage the Criminal Appeal No.213 of 2019 is allowed to the extent of offence under Section 452 read with Section 149, P.P.C. and respondents/ accused namely Dilawar Hussain, Shoaib Munir, Muhammad Zamman, Tayassar Bashir, Muhammad Imran and Saadia Bibi are hereby convicted for criminal trespass with rigorous imprisonment of two (02) years each with fine of Rs.50,000/- each by extending benefit of Section 382-B Cr.P.C., whereas all the respondents are taken into custody and transmitted to jail authorities to serve out their sentence. However, during the course of pendency of this appeal, one of the respondent/ accused namely Akhtar Ali had died, therefore, proceedings to his extent stands abated. The Crl. Appeal No.55 of 2021 is also not made out and the same is also hereby dismissed.

1. Learned counsel for the applicant contends that applicant Muhammad Zaman has wrongly been referred in last para of the impugned judgment of this Court in appeal and convicted, despite the fact that cross appeal was filed from the accused side against the complainant in this case by way of private complaint titled as Allah Yar v. Muhammad Umar Khan and others, and the same was also decided through the connected Criminal Appeal No.55-2021 and dismissed by this Court. The conviction of the applicant Muhammad Zaman is based upon the testimonies of PW-12, PW-13, PW-14, the Investigation Officers, who confirmed the arrest of accused persons Shoaib Akhtar, Akhtar Ali, Imran, Tayssar Bashir, Muhammad Qasim, Raja Shoaib, Naziran Bibi, Sanam Bibi, Saadia Bibi and Dilawar Hussain from the spot and in this backdrop, they were convicted in terms of Section 452 read with Section 149, P.P.C. by this Court in appeal. The applicant contends that his name was not referred among the persons apprehended on the spot, and in this scenario, he has prayed for rectification/correction of this clerical error in the judgment dated 26.04.2023 passed by this Court. The counsel for the applicant has relied upon the case law reported as 2003 PCr.LJ 847 (Abdul Hussain v. The State), PLD 2017 Balochistan 76 (Wali Muhammad v. Special Judge, Anti-Terrorism Court-I, Quetta and another).

2. Conversely, learned counsel for Malik Muhammad Umar Khan has raised the question of maintainability of instant application. The learned counsel contends that that once a Court has passed a final judgment, it becomes functus officio, after which no correction or amendment can be made, except in the case of a clerical error, which is not the case in hand as the applicant Muhammad Zaman has tried to persuade this Court to review the judgment of conviction after reappraisal of the evidence, which is not permissible.

3. Arguments heard and record perused.

4. Before proceeding with the merits of the case, I have confronted learned counsel for the applicant qua the maintainability of instant application on the ground that the applicant, after passing of the judgment of this Court dated 26.04.2023 (announced on 15.06.2023), had not surrendered nor lodged to the jail authorities in order to serve his sentence, which fact was conceded by the counsel for the applicant, who further rendered an explanation that the applicant has not challenged the impugned judgment before the Supreme Court of Pakistan without surrendering to judicial custody due to the heavy backlog in the Supreme Court, and there is a likelihood that if the applicant challenges his sentence before the Supreme Court, his appeal would not have been fixed before the expiration of his sentence. As a result, he intends to have this error corrected or amended by this Court in accordance with Section 561-A Cr.P.C.

5. While considering these arguments, we are of the view that unless the convicted person surrenders before the court and lodges in jail at the time of announcement of judgment of conviction, his application for correction or rectification (if any) or appeal or revision is not entertainable by any of the courts, including the Supreme Court of Pakistan.

6. This Court has been guided with the principle set out in 1981 SCMR 1 (Hayat Bakhsh v. The State), wherein, it was held that a fugitive from law loses right of audience if he defies the orders of the Court for his surrender and or otherwise abuses its process. A universal rule was reiterated that it is an essential condition of the administration of justice in a case affecting an individual or individuals that the persons concerned should submit to the due process of justice, which was not done so in the case in hand. Such aspect was also appreciated by the Supreme Court of Pakistan in PLD 1985 SC 402 (Awal Gul v. Zawar Khan and others), wherein it was held that unexplained noticeable abscondance disentitles a person to the concession of bail notwithstanding the merits of the case. The principle being that the accused, by his conduct, thwarts the investigation qua him, in which valuable evidence like recoveries is simply lost or is made impossible to be collected by his conduct; however, the case in hand is on different footings.

7. This court has taken guidance from case laws reported as 2012 [8] SCC 730 (Lavesh v. The State), PLD 2007 SC 564 (Raja Shamshad Hussain v. Gulraiz Akhtar), where different categories of absconder/fugitive offender have been dealt. Firstly, the accused, who has absconded and failed to join the investigation or to surrender before the Court of law prior to conviction, in which case his rights could not be upheld unless he surrenders before the Court of competent jurisdiction or the police authorities, and is consequently not entitled to bail. The second category pertains to those accused persons, whose sentences have been suspended under Section 426 Cr.P.C., pending in appeal whereafter they abscond. In such cases, the absconded accused are also not entitled to any concession of bail from any Court of law, unless they lodge in jail as their custody has been handed over to the surety while suspending their sentence, even their bail orders stand cancelled ipso facto as held in 2019 SCMR 1641 (Fawad Ali v. The State.).

8. At this juncture, it is also pertinent to mention that the power of the Court in suspension of sentence under Section 426, Cr.P.C is not wider than the power to grant bail under Sections 497 and 498, Cr.P.C., as laid down in 1969 SCMR 81 (Bahar Khan v. The State), rather it is narrow. The said principle further confirms that the appellant, who has absconded after suspension of his sentence, should have been lodged to jail prior to acceptance of any of the application by the appellate Court. The third category, which we are dealing in the present case is the applicant, who has been convicted by this Court whereafter he has not surrendered before the court nor lodged to jail. In this scenario, any application for rectification/correction of order / judgment, whether under Section 369 or Section 561-A Cr.P.C. is not entertain-able by the office or any Court, unless the absconder has been taken into custody and lodged in jail first.

9. The powers referred in section 369 Cr.P.C. by the counsel for applicant is only meant to correct the clerical/typographical mistake/ error occurred inadvertently in the impugned judgment or order apparent on the face of the record and without such exception, no judgment or order of a Court could be reviewed/modified. This aspect has been appreciated by the Supreme Court of Pakistan in case law reported as PLD 2015 SC 322 (The State v. Daniyal alias Dani), wherein it was held that:-

It goes without saying that in a case where the judgment is reserved a Court is well within its jurisdiction to fix the matter for rehearing of any point which needs further elaboration but if a judgment is announced with a final verdict regarding the fate of an accused person and such announcement is through a short order to be followed by detailed reasons and such short order is actually signed by the Members of the Bench then the Court is left with no jurisdiction to change the verdict subsequently or even to fix the case for rehearing on the merits or even on the question of sentence unless such Court possesses review jurisdiction which may even be exercised suo motu. In the case in hand the matter was that of a criminal appeal and in such a matter the High Court of Sindh, Karachi had no review jurisdiction available to it and, therefore, once the above mentioned short order had been passed by it deciding the fate of the respondent and of his appeal then the High Court was subsequently bereft of any jurisdiction to order rehearing of the matter for the purposes of considering alteration of its earlier announced judgment.

2025 P Cr. L J 748

[Islamabad]

Before Arbab Muhammad Tahir, J

Rameez Iqbal---Petitioner

Versus

The State and others---Respondents

Writ Petition No. 1934 of 2023, decided on 26th April, 2024.

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

---- S. 550 ---Impounding of vehicle---Vehicle neither stolen property nor involved in any criminal case---Vehicle impounded by the Police under S.550, Cr.P.C. ---Two step-brothers and their real mother were involved in litigation (including civil- suit); during its pendency, subject-vehicle was taken into possession (impounded ) by the Police under S.550, Cr.P.C.---Whether merely due to litigation the subject vehicle which was neither stolen property nor involved in any criminal case could be impounded under S.550 Cr.P.C?---Held, that every criminal case is required to be seen in the light of its own peculiar facts and circumstances--- In the present case, subject-vehicle was impounded by the Police under S.550, Cr.P.C. whereas, there is no contest on the point that neither the subject vehicle is a stolen property nor involved in any criminal case ---Provision of S.550, Cr.P.C. shows that property can only be seized if it is alleged to have been stolen, or is found under circumstances which create suspicion of the commission of any offence--- In the present case, none of the two pre-requisites exist and the action taken by the Police; reflects highhandedness and abuse of authority--- Question of title of subject vehicle squarely falls within the ambit of Civil Court where civil suit is already pending between the parties--- In absence of pre-requisites for invoking provision of S.550 Cr.P.C, which is an admitted position in the present case, subject-vehicle could not have been seized under S.550, Cr.P.C---In the present case , proceedings initiated by local police under S.550, Cr.P.C are violative of mandatory provisions, therefore, not legally sustainable --- Resultantly, proceedings initiated by the Police under S.550, Cr.P.C were quashed---As the main proceedings have since been declared to have been taken without lawful authority, subsequent proceedings, being its offshoot, would be treated alike, and are consequently set-aside---Subject-vehicle shall forthwith be handed over to respondent(step-brother of petitioner) as it was taken into possession from his custody--- Constitutional petition was disposed of accordingly.

Hassan Muhammad v. Nazar Hussain 2005 SCMR 1063 ref.

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

---- Ss. 523 & 550 ---Impounding of vehicle by police---Legality---Vehicle neither stolen property nor involved in any criminal case ---Vehicle impounded by the Police under S.550 Cr.P.C. without reporting it to the Magistrate---Two step-brothers and their real mother were involved in litigation (including civil- suit); during its pendency, subject-vehicle was taken into possession (impounded ) by the Police under S.550, of Cr.P.C.---Superdari was firstly granted by the Magistrate to step-brother and then to mother ; the petitioner(son) filed constitutional petition as revision against said both orders was dismissed ---Validity --- After taking the subject-vehicle into custody, it was mandatory to report it to the Magistrate under S.523, Cr.P.C without any loss of time but , in the present case, no such effort was made which is violation of Ss. 523 and 550, Cr.P.C. ---Criminal proceedings cannot be initiated, at the behest of any party, to exert pressure or to resolve the civil dispute as per their whims--- In the present case , proceedings initiated by local police under S.550, Cr.P.C are violative of mandatory provisions, therefore, are not legally sustainable --- Resultantly, proceedings initiated by the Police under S.550 Cr.P.C are quashed---As the main proceedings have since been declared to have been taken without lawful authority, subsequent proceedings, being its offshoot, would be treated alike, and are consequently set-aside---Subject-vehicle shall forthwith be handed over to respondent(step-brother of petitioner) as it was taken into possession from his custody---Constitutional petition was disposed of accordingly.

(c) Constitution of Pakistan ---

----Art.199(1)(a)(ii) --- Criminal Procedure Code (V of 1898), S.550 ---Act of police---Power of High Court to declare acts of police as unlawful---Vehicle neither stolen property nor involved in any criminal case ---Vehicle impounded by the Police under S.550, Cr.P.C. --- Invoking constitutional jurisdiction of High Court --- Two step-brothers and their real mother were involved in litigation (including civil- suit);during its pendency, subject-vehicle was taken into possession (impounded ) by the Police under S.550, Cr.P.C.--- Validity---High Court can declare acts of the police officers to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceeding---In the present case, proceedings initiated by local police under S.550, Cr.P.C were violative of mandatory provisions, therefore, not legally sustainable --- Resultantly, while exercising powers vested in the High Court in terms of Art.199 of the Constitution, proceedings initiated by the Police under S.550, Cr.P.C were quashed---As the main proceedings have since been declared to have been taken without lawful authority, subsequent proceedings, being its offshoot, would be treated alike, and were consequently set-aside---Subject-vehicle shall forthwith be handed over to respondent(step-brother of petitioner) as it was taken into possession from his custody--- Constitutional petition was disposed of accordingly.

FIA through Director General, FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265 ref.

Jalal Haider for Petitioner.

Iftikhar Hussain Khan for Respondents Nos. 2 and 3.

Sardar Salman Ejaz, State Counsel.

Munawar SI with record for the State.

Order

Arbab Muhammad Tahir, J.---Through the listed petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner namely Rameez Iqbal impugns orders dated 10.05.2023 and 03.06.2023 passed by the learned Assistant Commissioner-Saddar, Islamabad and the learned Additional Sessions Judge-V, East, Islamabad, respectively. Operative paragraph 11 of second impugned order dated 03.06.2023 is reproduced for ready reference:-

"11. In view of above the impugned order is not maintainable under the law and the Magistrate withdrawn, recalled his order without even filing an application of the review. However, this Court under Section 439 read with Section 435 Cr.P.C is empowered to examine the vires of the order passed by the inferior forum for its correctness, legality or propriety. Consequently, the impugned order is set aside and the revision preferred by the petitioner is accepted. Further, in view of above discussion and keeping in view of the facts and circumstances of the matter, the order dated 07.04.2023 passed by the learned Magistrate in favor of the petitioner was also passed without going through the record and obtained by concealment of facts by the petitioner also against the law; hence, liable to be set aside. Besides the seizure of the vehicle by the police is also found without reason particularly the same was not required in any criminal case, therefore, subject seizure of the vehicle was also illegal for which a civil suit was already sub judice before the civil court, wherein an injunctive order was passed in favour of respondent No. 2, therefore, the vehicle is to be reversed and returned to the last possessor i.e. Ali Raza, who taken from the respondent No. 2, therefore, prima facie the petitioner attempted to obtain the vehicle by involving the police, whereas the rival claimant i.e. respondent No. 2 already claiming declaration, therefore, the vehicle is required to be returned to her being last possessor as Ali Raza did not appear consequently the application of respondent No. 2 is allowed accordingly".

1. Precisely, as per copy of report issued by the Police Monitoring System, vehicle (Registration No. LEA,4957-Mini Pajero, green colour, chases No. H56A5000566, Engine No. 4A30221110, 650 CC) ("subject vehicle") was impounded by the officials of Police Station Khanna Islamabad, on 02.04.2023 under Section 550 Cr.P.C from the possession of respondent No. 3. The petitioner then moved the learned A.C, Islamabad Saddar for interim custody of the subject vehicle through an application which was allowed vide order dated 07.04.2023. At this stage, respondent No. 2 Nasreen Begum filed an application before the learned AC Saddar-Islamabad for recalling of order dated 07.04.2023 and for the grant of interim custody of the subject vehicle to her. On the said application, learned A.C Saddar, Islamabad vide order dated 10.05.2023 recalled its earlier order dated 07.04.2023 and dismissed both the applications, one filed by petitioner and the second filed by the respondent No. 2. The petitioner assailed the said order through revision petition which was dismissed vide order dated 03.06.2023 passed by the learned Additional Sessions Judge-V, East, Islamabad. Hence, instant petition.

2. Learned counsel for petitioner argued that neither the respondent No. 2 is owner of the vehicle nor it was recovered from her possession; that there was no injunctive order in suit filed by respondent No. 2 against the petitioner; that under the law Judicial Magistrate retains no power to review its own order; that petitioner is bonafide purchaser and registered owner of the vehicle; and that both the impugned orders being against the law and facts are liable to be set aside. Learned counsel relied upon case law reported as 2023 SCMR 711.

3. On the other hand, learned counsel for respondents Nos. 2 and 3 repelled the above submissions by contending that the illegality, attributed to the court of 1st instance has already been rectified by the learned Revisional Court; that under the law, vehicle taken in custody under section 550 Cr.P.C is to be returned to the person from whose custody it was taken into possession as neither the vehicle is a stolen property nor found in circumstance creating suspension regarding commission of any offence; that the proceedings under section 550 Cr.P.C were illegal, so observed by Revisional Court in its order, therefore, petition is liable to be dismissed. Learned counsel relied upon case law reported as 1997 PCr.LJ 1006, 1992 PCr.LJ 2137.

4. Heard. Record perused.

5. The parties-to-lis are closely related inter-se. Mst. Nasreen Begum, respondent No.2 is real mother of petitioner Rameez Iqbal and respondent No.3 Ali Raza whereas petitioner Rameez Iqbal and Ali Raza are step brothers as the lady had contracted two marriages, one with Muhammad Iqbal, father of petitioner Rameez Iqbal and second with Khalid Mehmood, father of respondent No. 3 Ali Raza. As per particulars available on record, petitioner and her mother are residing in Rawalpindi whereas petitioner's step-brother Ali Raza respondent No. 3 is residing in Islamabad.

6. It evinces from the record that dispute between the parties over the subject vehicle commenced in October, 2022 when on 08.10.2022 petitioner moved an application to the SHO, Police Station Civil Lines, Rawalpindi against his step-brother Ali Raza, respondent No.3 on the allegation of taking away subject vehicle by the latter with whom, as per contents of said application, he only had acquaintance and there was no mention of their inter se relation. The petitioner in the said application asserted to have handed over possession of the subject vehicle to respondent No.3 on 02.07.2022. Against the said action, respondent No.3, mother of the petitioner, on 22.10.2022, filed an application under section 22-A Cr.P.C against police officials of P.S. Civil Lines, Rawalpindi.

7. On 24.01.2023, respondent No.3 Mst. Naseem Begum filed suit for declaration and permanent injunction regarding subject vehicle against her son, petitioner. In the said suit, injunctive order was passed on 26.01.2023, once it was dismissed in default due to non-deposit of process fee vide order dated 06.03.2003. However, subsequently restored vide order dated 25.03.2023. During pendency of the suit, on 02.04.2023 subject vehicle was taken into possession by the officials of P.S/. Khanna, Islamabad under Section 550 Cr.P.C.

8. There is no contest on the point that parties are closely related to each other, already been in litigation over the subject vehicle in District Rawalpindi where initially petitioner filed an application against his step brother Ali Raza on the allegation of taking away his vehicle which was countered by the lady, respondent No.2, by filing an application in terms of Section 22-A Cr.P.C, followed by a civil suit, referred above, against the petitioned and during pendency of the same, subject vehicle was impounded by the officials of PS Khanna, Islamabad.

9. It is well settled principle that every criminal case is required to be seen in the light of its own peculiar facts and circumstances. In the present case, subject vehicle was impounded by the police under section 550 Cr.P.C. As mentioned above, there is no contest on the point that neither the subject vehicle is a stolen property nor involved in any criminal case, therefore, it is to be seen as to whether in such eventually, subject vehicle could be impounded under section 550 Cr.P.C which reads as under:-

"550. Powers of police to seize property suspected to be stolen : Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission, of any offence, such police officer, if subordinate to; the officer incharge of a police station, shall forthwith report the seizure to that officer."

1. Bare perusal of above provision of law shows that property can only be seized subject to the conditions if it is alleged to have been stolen, or found under circumstances which create suspicion of the commission of any offence. In the present case, none of the two pre-requisites exist and the action taken by the police, in the backdrop of the facts highlighted above, reflects highhandedness and abuse of authority. Reliance is placed upon case of "Hassan Muhammad v. Nazar Hussain" [2005 SCMR 1063] wherein it was held that:-

"In view of above, the question of title of the tractor and whether the conditions enumerated in the alleged executed agreement commencing the sale of tractor in question were complied with or otherwise squarely fall within the ambit of Civil Court. The parties may approach the Civil Court if so desired for the redressal of their grievances. As mentioned hereinabove that the tractor in question could not have been seized under section 550, Cr.P.C and thus the action of police is not only unlawful but depicts highhandedness and abuse of authority. It is worthwhile to mention here that the shops given by the petitioner have been rented out by Nazar Husain (respondent No.1) who is enjoying the rent of the said shops and besides that an amount of Rs 1,11,000/- was also received by him. Nazar Hussain (respondent No.1) is present and directed to hand over the tractor in question to Hassan Muhammad (petitioner) immediately. Abdul Latif, SubInspector of Police is also present and is hereby directed to get the order implemented in letter and spirit."

1. On the touchstone of the principle ibid, question of title of subject vehicle squarely falls within the ambit of Civil Court where civil suit is already pending between the parties. In absence of pre-requisites for invoking provision of Section 550 Cr.P.C, which is an admitted position in the present case, subject vehicle could not have been seized under section 550, Cr.P.C, thus, impugned action, on the face of it depicts highhandedness and abuse of authority on the part of local police. Another important aspect of the case is that after taking the subject vehicle in custody, it was mandatory to report it to the Magistrate under section 523 Cr.P.C without any loss of time but no such effort was made which is violation of Sections 523 and 550 Cr.P.C. Criminal proceedings cannot be initiated, at the behest of any party, to exert pressure or to resolve the civil dispute as per their whims.

2025 P Cr. L J 780

[Islamabad]

Before Muhammad Azam Khan, J

Zeeshan Tahir and aother---Petitioners

Versus

Rafaqat Ali and another---Respondents

Criminal Revision No. 134 of 2024, decided on 28th January, 2025.

Penal Code (XLV of 1860)---

----S. 376(2)---Criminal Procedure Code (V of 1898), Ss. 561-A & 540---Summoning of witness---Scope---Application filed by respondent/complainant for summoning of Investigating Officer as witness was allowed by the Trial Court---Validity---Purpose of S.540, Cr.P.C., empowered the Court to summon, examine, recall and re-examine any person, if his evidence appeared to the Court essential for the just decision of the case---Court could summon any witness at any stage subject to its satisfaction that the evidence would be stepping stone for just decision---First part of the said Section conferred discretion, the second made obligatory recalling of witness if it was essential for the just decision of the case---However, there were some factors which restrained the Court from summoning, recalling or re-examining the witnesses as it should not be meant to fill any lacuna left by any party---In the present case,Investigating Officer was examined as prosecution witness on 28.01.2023 who deposed regarding chalking of FIR but he failed to mention the proceedings and outcome of the two days of investigation in his examination in chief---Said witness remained Investigating Officer during the initial two days of investigation---Admittedly,said witness was initial Investigating Officer of the case, who registered the FIR and also conducted initial investigation including spot inspection; got examined the victim through Medico Legal Officer, arrested one accused and conducted his medical etc.---Documents prepared by said witness during investigation were part of investigation and were already annexed with the report filed under S.173, Cr.P.C. therefore, re-summoning of said witness would bring nothing new on record on the part of the prosecution and documents prepared by him were not newly introduced documents and it did not amount to fulfilling any lacuna on behalf of the prosecution to summon said witness for exhibiting the documents prepared by him---Re-summoning of said witness would also not cause any prejudice to the accused, rather it would be essential to meet the ends of justice---In the instant case the documents prepared by Investigating Officer, during the investigation, were part of the investigation and already annexed with the report under S.173, Cr.P.C., hence it was held that re-examination of Investigating Officer would not amount to fill up the lacunas of the prosecution case and re-summoning of said witness was essential for meeting the ends of justice and just decision of case, as duty of the Court was to do complete justice---Criminal revision petition was dismissed, in circumstances.

Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Muhammad Falak Sher v. The State and others PLD 2018 Lahore 13; Shereen Gul alias Fatima v. Special Judge, ATC-I, Islamabad and others 2015 PCr.LJ 724; Tamraiz Javaid Masih v. The State 2013 MLD 888; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; Muhammad Murad Abro v. The State through A.G. Balochistan 2004 SCMR 966 and Shaukat v. The State and another 1997 PCr.LJ 2089 rel.

Raja Rizwan Abbasi for Petitioner.

Muhammad Iqbal Kakar and Zahid Asif Chaudhry for Respondent No. 1.

Rana Hassan Abbas, ADPP.

Aftab S.I, PS. Sihala Islamabad.

Date of hearing: 27th January, 2024.

Judgment

MUhammad Azam Khan, J.---Through this Criminal Revision Petition, the Petitioners namely Zeeshan Tahir and Muhammad Ramzan, facing trial in case FIR No. 358 dated 17.09.2019 under Section 376(2) of the Pakistan Penal Code, 1860 ("P.P.C.") of Police Station Sihala, Islamabad has called in question the order dated 27.09.2024 ("Impugned Order") passed by the learned Additional Sessions Judge Islamabad-East/Special Anti-Rape Court ("Trial Court") vide which the application under Section 540 of the Code of Criminal Procedure, 1898 ("Cr.P.C.") for summoning the witness i.e. Sikandar Sadiq, A.S.I. (PW-5) filed by the Respondent No. 1/Complainant's counsel, was allowed.

1. The chronicle of this case is that the Respondent No. 1/Complainant namely Rafaqat Ali submitted written application to the local police of P.S. Sihala wherein it is alleged that on 14.8.2019 at about 4/5 PM at Sihala Camp petitioners forcibly took Mst. Haya Ali, aged about 16 years from street to a under construction house and both the petitioners committed rape with her.

2. The learned counsel for the Petitioners inter-alia argued that the impugned order passed by the learned Trial Court is illegal, against the law, facts, without lawful justification and not tenable in the eye of law; that the learned trial Court by allowing the application of the complainant has erred in law and has granted leave to the prosecution to fill up the lacunas in the prosecution case; that after lapse of considerable period i.e. about 1 year and 8 months the complainant has requested for summoning of PW-5 namely Sikandar Sadiq, ASI; that according to Article 133 of the Qanun-e-Shahadat Order, 1984 ("Qanun-e-Shahadat Order") re-examination of the witnesses shall be directed to the explanation of the matters referred to in cross-examination and there is no provision to re-examine a witness and record his examination in chief again and specially when the said witness has been cross-examined by the defence side, hence finally prayed for acceptance of the instant criminal revision petition.

3. While on the other hand, contradicting the contention of the learned counsel for the petitioners, the learned ADPP for the State assisted by the Respondent No. 1/Complainant's counsel vehemently resisted this petition on the ground that the impugned order is detailed and quite in accordance with the law; that the trial of the case is ongoing and there is no bar on the re-examination of Sikandar Sadiq, A.S.I (PW-5). (PW-5), 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; so, it cannot be said that re-examination of PW-5 would amount to fulfill the lacuna in the prosecution case as the said prosecution witness would obviously be available to the defence for the purpose of cross-examination; that it is a case of vital importance wherein the petitioners are accused of commission of rape with the minor victim; that it is in the fitness of the things to allow the prosecution to re-examine PW-5 who has conducted investigation on the first two days and as such the learned Trial Court has not committed any illegality or irregularity while passing the Impugned Order, therefore, the instant Criminal Revision Petition merits dismissal.

4. Arguments heard, record perused.

5. From the matrix of the instant lis following important situations require to be addressed.

"Whether re-summoning and re-examining of Sikandar Sadiq, A.S.I. (PW-5) does or does not amount to fill up the lacuna of prosecution case.

Whether re-summoning and re-examining of Sikandar Sadiq, A.S.I. (PW-5) is essential for meeting the ends of justice and just decision of case."

1. Before this court proceeds to comment on the above said propositions, it would be appropriate to have precise discussion on Article 133 of the Qanun-e-Shahadat Order and Section 540, Cr.P.C. and for convince the same are hereby reproduced:-

[Article 133 of the Qanun-e-Shahadat Order. Order of examinations.-(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. (2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.

"Section 540, Cr.P.C. 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."

1. Article 133 of the Qanun-e-Shahadat Order is regarding the manner in which the statement of witnesses is to be recorded during the trial, while the purpose of Section 540, Cr.P.C. which empower the court to summon, examine, recall and re-examine any person, if his evidence appears to the 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 stepping stone for just decision. The first part of the said section confers discretion, the second makes obligatory that recalling of witness if it is essential for the just decision of the case. Now there are some factors which restrain the court from summoning, recalling or re-examining the witnesses as it should not be meant to fill any lacuna left by any party. In the present case Sikandar Sadiq, A.S.I. was examined as PW-5 on 28.01.2023 who deposed regarding chalking of FIR but he failed to mention the proceedings and outcome of the two days of investigation in his examination in chief. The said PW also remained investigating officer ("I.O.") during the initial two days of investigation. Admittedly Sikandar Sadiq, A.S.I. (PW-5) was initial I.O. of the case, who registered the FIR and also conducted initial investigation including spot inspection, got examined the victim through Medico Legal Officer, arrested one accused and got conducted his medical etc. The documents prepared by him during investigation are part of investigation and were already annexed with the report filed under Section 173, Cr.P.C. therefore, re-summoning of Sikandar Sadiq, A.S.I. (PW-5) will bring nothing new on record on the part of the prosecution and documents prepared by him are not newly introduced documents and it does not amount to fulfill any lacuna on behalf of the prosecution to summon PW-5 for exhibiting the documents prepared by him. Re-summoning of PW-5 will also not cause any prejudice to the accused, rather it will be essential to meet the ends of justice.

2. The learned Trial Court is fully empowered under Section 540, Cr.P.C. to summon any witness at any stage of trial or examine any person in attendance if his evidence appears essential for the just decision of the case. The purpose of Section 540, Cr.P.C. is to enable the court to go at the truth of the matter to come to a proper conclusion in the case under trial and in the peculiar circumstances, imposes a duty on the court to summon a person in the witness box whose evidence is essential. It is discretionary power which should be liberally used in a case in which the examination of a person is material and for meeting the ends of justice to come to a right conclusion.

3. Reliance in this regard is placed upon the case of Nawabzada Shah Zain Bugti and others v. The State (PLD 2013 SC 160) wherein it has been held that:-

"Section 540, Cr.P.C gave wide powers to the court to examine any witness as a court witness at any stage of the case and in certain cases imposed a duty on the court to summon witnesses who could not otherwise be brought before the court---where court found that investigation was defective, it could not sit idle and had to exercise all enabling provisions under the law including S. 540, Cr.P.C to discern the truth--- purposes of S. 540, Cr.P.C, the Court even without any formal application from prosecution or accused, could summon any person as witness or examine any person in attendance as a witness or recall and re-examine any person already examined."

1. Further reliance is placed upon the case laws reported as Muhammad Falak Sher v. The State and others (PLD 2018 Lahore 13), Shereen Gul alias Fatima v. Special Judge, ATC-I, Islamabad and others (2015 PCr.LJ 724), Tamraiz Javaid Masih v. The State (2013 MLD 888), Ansar Mehmood v. Abdul Khaliq and another (2011 SCMR 713), Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCMR 966) and Shaukat v. The State and another (1997 PCr.LJ 2089).

2. The learned counsel on behalf of the petitioners relied on a ruling of the Lahore High Court, Multan Bench 2024 PCr.LJ 1401 in which the learned Bench dismissed the application under section 540 Cr.P.C. filed by the prosecution, the facts in that case are distinguishable from the facts in the instant case as in that case the prosecution has made an attempt to fill any lacuna pointed out by the learned defence counsel during the course of cross-examination, as the forensic report which was prepared and issued in response to fresh analysis requested by the agency bearing letter No. 2672/D-legal dated 21.06.2023. The relevant portion of the judgment is reproduced as under:-

2025 P Cr. L J 818

[Islamabad]

Before Inaam Amin Minhas, J

Hazrat Umar---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 9 of 2025, decided on 18th February, 2025.`

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 420, 468, 471, 381 & 34---Cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, use of a forged document as genuine, theft by a servant or clerk from their master's property, common intention---Cancellation of bail---Principles---Accused-petitioner was charged that after his termination by the respondent from his office, he stole letterhead pad, stamps, original card and file of respondent's car and prepared some forged documents on his letterhead pad and transferred the ownership of car by using forged documents---Accused-petitioner was granted bail which was recalled by the Appellate Court---Validity---Perusal of the record revealed that FIR was registered under Ss. 420, 468, 471, 381, and 34, P.P.C against petitioner and co-accused---Co-accused of the petitioner was granted post arrest bail on 16.02.2024---Subsequently, the petitioner was granted post-arrest bail---On 09.10.2024, respondent No.l filed a petition under S.497(5), Cr.P.C, seeking cancellation of bail---Notably, that was the first instance where respondent No.2 introduced S.467, P.P.C in his petition---However, the case record clearly indicated that at the time of the bail granting order, the attendance of counsel for the parties, State Counsel and the Investigating Officer was duly marked before Judicial Magistrate---Despite that, neither counsel for respondent No.2, State Counsel or the Investigating Officer disclosed the inclusion of S.467, P.P.C in the FIR---Said omission raised serious concern regarding malafide intent on the part of the prosecution---Evidently, State did not file an application seeking cancellation of bail granting order, instead only respondent No. 2 initiated such proceedings---Once bail is granted, it should not be cancelled unless there are exceptional circumstances, such as misuse of concession, interference with the investigation, or commission of a subsequent offence---Mere dissatisfaction of the complainant is not a valid ground for bail cancellation---In the present case, respondent No.2 with mala fide intention relied on the addition of a new section to invoke the prohibitory clause as a ground for cancelling of bail, which was against the settled principles for cancellation of bail---Deletion or substitution of relevant section of P.P.C through Diary Numbers (Zaminies) by the Investigating Officer did not control the judicial discretion of Court exercised under S.497(2), Cr.P.C---In cases of bail, the facts of the FIR or complaints were to be seen by the Court while granting bail and the bail was granted in its entirety, therefore, after granting the bail, the Investigating Officer could not undermine the order passed by the Court in bail petitions by way of addition or deletion of the sections in FIR---Any subsequent changes or additions in the FIR do not automatically invalidate the bail order unless misuse of concession, obstruction of justice, or other compelling reasons are established---In the present case, none of the grounds as mentioned above were available to the Additional Sessions Judge for recalling of the bail granting order---Investigation of the case had already been finalized and physical custody of the petitioner was no more required for the purposes of investigation, therefore, Additional Sessions Judge could not have recalled the bail granting order passed by Judicial Magistrate---No illegality or perversity had been found in the bail granting order---Revision petition was accepted in circumstances and impugned bail recalling order was set-aside.

Muhammad Tanveer v. The State PLD 2017 SC 733; Saeed Ullah and 2 others v. The State and another 2023 SCMR 1397; Muzafar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 and The State v. Muhammad Sarwar and others 2017 SCMR 1993 rel.

Ch. Jamshed and Ch. Abdul Ghafoor Qammar for Petitioner.

Rana Ali Raza, State Counsel for the Respondent No. 1.

Waqas Ali for Respondent No. 2.

Waqar Ahmad S.I and Ali Muhammad S.I with record

Judgment

Inaam Amin Minhas, J.---Through the listed revision petition in terms of section 435 read with section 439 Cr.P.C, the petitioner assails order dated 05.12.2024 ("Impugned Order"), passed by learned Additional Sessions Judge, Islamabad (West), whereby petition for cancellation of bail filed by Muhammad Daniyal (respondent No.2) was accepted and bail granted to the petitioner vide order dated 03.10.2024 in case FIR No.496, dated 28.07.2023, under sections 420, 468, 471, 381 and 34, P.P.C, P.S. Tarnol, Islamabad was recalled with following observations:-

"As per record, this offence under Section 467 P.P.C was added on 25.09.2024 whereas bail was granted on 03.10.2024. Offence under Section 467 entails maximum punishment as imprisonment for life which falls within prohibitory clause of Section 497 Cr.P.C, so findings of learned Magistrate that offence does not fall within prohibitory clause of Section 497 Cr.P.C is incorrect."

1. Brief facts are that co-accused of the petitioner namely Khurram Shehzad was an employ of respondent No.2, when he was terminated by respondent No.2 from his office, he stole Letterhead Pad, Stamps, Original Card and file of respondent No.2's car and prepared some forged documents on his Letterhead Pad and transferred the ownership of respondent No.2's car by using forged documents in his name. The petitioner submitted the same forged documents along with an application against respondent No.2 to the SHO P.S. Tarnol and the FIR was registered against respondent No.2. After that respondent No.2 moved his bail before arrest and during pendency of bail, police sent the said documents to National Forensic Science Agency for forensic. In first instance, FIR under section 406 P.P.C was registered against respondent No.2. After receiving of forensic report by the police, it appeared that the documents are fake and not the real and that respondent No.2 is not the author of that forged documents; that after forensic report, police deleted section 406 P.P.C against respondent No.2 and added sections 381, 420, 468, 471 and 34 P.P.C against the petitioner and co-accused. Co-accused of the petitioner was granted post arrest bail on 16.02.2024 by learned Judicial Magistrate. The petitioner was arrested on 20.09.2024 and remained on physical remand for five days and sent to judicial lock up on 25.09.2024. The petitioner filed his post arrest bail petition before learned Judicial Magistrate, which was allowed vide order dated 03.10.2024. Thereafter on 09.10.2024 respondent No.2 filed petition under section 497(5), Cr.P.C before learned Additional Sessions Judge for cancellation of post arrest bail granted to the petitioner, which was allowed through the Impugned Order, hence, this petition.

2. Learned counsel for the petitioner contended that the petitioner lodged an FIR No.496, dated 28.07.2023, under section 406 P.P.C, at P.S. Tarnol, Islamabad against respondent No.2 and later on with mala fide intention on the part of the police and respondent No.2, the FIR was converted against the petitioner by deleting section 406 P.P.C and adding sections 420, 468, 471, 381, 34 P.P.C. Learned counsel further contended that these sections were mentioned in the applications for obtaining remand/Parcha remands dated 23.09.2024 and 25.09.2024; that the petitioner moved post-arrest bail in the above said offences, which was granted by learned Judicial Magistrate, vide order dated 03.10 2024 and thereafter a petition for cancellation of bail was filed only on the ground that offence under section 467, P.P.C falls within ambit of prohibitory clause of section 497, Cr.P.C, which fact was not considered by learned Judicial Magistrate while granting bail to the petitioner; that the I.O in connivance with respondent No.2 added sections 467 and 201, P.P.C after passing of bail granting order; that Impugned Order is not in consonance with the principles and law laid down by the Honourable Superior Courts in respect of cancellation of bail.

3. On the other hand, learned State Counsel assisted by learned counsel for respondent No.2 fully supported the Impugned Order and argued that section 467 P.P.C was added before decision of the bail petition on 25.09.2024, vide Diary No.32, which escaped notice of learned Judicial Magistrate while deciding the bail petition; that Impugned Order has been passed in accordance with law.

4. I have heard learned counsel for the parties and perused the record.

5. Perusal of the record reveals that FIR No. 496, dated 28.07.2023, was registered under sections 420, 468, 471, 381 and 34 P.P.C at Police Station Tarnol, Islamabad. The petitioner and co-accused namely Khurram Shahzad were nominated therein. Co-accused of the petitioner was granted post arrest bail on 16.02.2024. The petitioner was arrested on 20.09.2024 and remained on physical remand for five days till 25.09.2024 and thereafter was granted post-arrest bail by learned Judicial Magistrate on 03.10.2024 following the principle of consistency.

6. The record further reveals that upon the petitioner's arrest, the I.O submitted applications for obtaining physical remand on 23.09.2024 and 25.09.2024 before learned Judicial Magistrate for and in these applications the I.O. only cited sections 420, 468, 471, 381, 411, and 34, P.P.C but did not mention sections 467 and 201, P.P.C.

7. Subsequently, the petitioner applied for post-arrest bail based on the remand applications, which listed the same sections. Considering this fact, learned Judicial Magistrate granted bail to the petitioner.

8. On 09.10.2024, respondent No.1 filed a petition under section 497(5), Cr.P.C seeking cancellation of bail. Notably, this was the first instance where respondent No.2 introduced section 467 P.P.C in his petition. However, the case record clearly indicates that at the time of the bail granting order dated 03.10.2024, the attendance of learned counsel for the parties, learned State Counsel and the I.O was duly marked before learned Judicial Magistrate. Despite this, neither learned counsel for respondent No.2, learned State Counsel nor the Investigating Officer disclosed the inclusion of section 467, P.P.C in the FIR. This omission raises serious concerns regarding mala fide intent on the part of the prosecution.

9. The Hon'ble Supreme Court of Pakistan in Muhammad Tanveer v. The State (PLD 2017 SC 733) emphasized that bail cannot be cancelled on the grounds that were not initially raised before Trial Court, particularly when the prosecution's conduct indicates mala fide intent. Applying this principle, the suppression of material facts by the prosecution further strengthens the petitioner's case and justifies the grant of bail.

10. It is evident from the record that the State did not file an application seeking cancellation of bail granted order dated 03.10.2024 instead, only respondent No.2 initiated such proceedings.

11. It is well established by now that there is a fundamental distinction between the grant of bail and its cancellation. In the case Muhammad Tanveer Supra the Honourable Supreme Court also held that once bail has been granted, it should not be cancelled unless there are exceptional circumstances, such as misuse of concession, interference with the investigation, or commission of a subsequent offence. Mere dissatisfaction of the complainant is not a valid ground for bail cancellation.

12. For cancellation of bail following guidelines have been laid down by the Honourable Supreme Court of Pakistan in Saeed Ullah and 2 others v. The State and another, (2023 SCMR 1397) and Muzafar Iqbal v. Muhammad Imran Aziz and others, (2004 SCMR 231):-

i. If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii. That the accused has misused the concession of bail in a manner

iii. That accused has tried to hamper prosecution evidence persuading/ pressurizing prosecution witnesses.

iv. That there is the likelihood of absconsion of the accused beyond the jurisdiction of Court.

v. That the accused has attempted to interfere with the smooth course of investigation.

vi. That accused misused his liberty while indulging into similar offence.

vii. That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

1. Apart from the aforementioned principles governing the cancellation of bail, no other ground can be taken into consideration for cancellation of bail. In the present case, respondent No.2 with mala fide intention relied on the addition of a new section to invoke the prohibitory clause as a ground for canceling of bail, which is against the settled principles for cancellation of bail reproduced in the preceding paragraph.

2025 P Cr. L J 931

[Islamabad]

Before Khadim Hussain Somroo, JJ

Mst. Nighat Manzoor---Applicant

Versus

The State---Respondent

Cril. Misc. No. 300-B of 2025, decided on 19th February, 2025.

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

----S. 497---Customs Act (IV of 1969), Ss. 2(s), 16, 156(1)(8)(70)(i)(e) & 139---Imports and Exports' (Control) Act (XXXIX of 1950), S.3(1)---Possessing gold ornaments over the allowed limit while travelling abroad---Smuggling, allegation of---Post-arrest bail, grant of---Guilty intent, missing of---Allegation against accused was that, during her search, raw gold weighing 934 grams and jewelry weighing 1214 grams were recovered from her purse for which she failed to produce any valid document for transporting the same---Though the petitioner (accused person) was arrested at the airport by the Customs Authorities yet she, being a passenger, was not issued any boarding card, nor did she reach the international departure lounge---No tag or information about the subject bag booking in the name of the accused person was available on the record---Simply having gold ornaments over the allowed limit, which were found during a passenger's scan at the ASF scanner near the departure lounge entrance, does not automatically prove guilty intent or an attempt to commit an offence---Passenger had not gone through immigration or gotten the required stamp on the passport---Even if it was assumed that there was an initial plan to smuggle the gold, the passenger still had the chance to change her mind and give the extra gold to someone outside the departure area, as often happens in cases of excess baggage---Therefore, even if intent was assumed, the actions would not go beyond just preparing and would not be considered an actual attempt---There was nothing available on the record to show that the petitioner was a repeat offender which may prove that she has intentionally concealed the gold ornaments---Petitioner (woman accused) was granted post-arrest bail, in circumstances.

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

----S. 497(2)---Customs Act (IV of 1969), Ss. 2(s), 16, 156(1)(8)(70)(i)(e) & 139---Imports and Exports (Control) Act (XXXIX of 1950), S. 3(1)---Possessing gold ornaments over the allowed limit while travelling abroad---Smuggling, allegation of---Post-arrest bail, grant of---Minimum quantity of gold for allegation of smuggling---Mechanism to determine---Allegation against accused (a lady passenger at airport) was that, during her search, raw gold weighing 934 grams and jewelry weighing 1214 grams were recovered from her purse for which she failed to produce any valid document for transporting the same---Question as to whether the Customs Authorities could apply the minimum requirement of smuggling in terms of S.2 of the Customs Act, 1969 upon the petitioner for possessing gold ornaments---Held, that in Pakistan, the Federal Board of Revenue (FBR), Customs Authorities, and approved jewelers/ valuators were authorized to determine the value of gold for investigative purposes---Valuation was based onthe weight, purity, and prevailing market price of gold---Proper methods, such as XRF analysis (X-ray Fluorescence Analysis) and hallmarking were used to ensure accuracy---Compliance with legal frameworks, such as the Income Tax Ordinance 2001 and the Customs Act, 1969, was essential for fair and transparent valuation---In the present case, the value of the recovered gold ornaments was estimated to be approximately R.48,119,487/- however, the Investigation Officer failed to provide any substantiation, reference, or documentation regarding the methodology, formula, or standard employed to ascertain the said value prior to the registration of the case---Investigation record was conspicuously silent on whether the prevalent valuation standard was adhered to in determining the value of the gold---Said aspect of the case was of significant relevance, particularly in relation to the quantum of sentence prescribed under the provisions of the Customs Act 1969---Petitioner / accused submitted her income tax returns under S.114 (1) of Income Tax Ordinance, 2001, which prima facie showed the entry of the gold ornaments---Possession of excess gold ornaments prima facie lacked conclusive guilt---Accused-lady had not cleared immigration, and the possibility of abandoning the act, made the prosecution's case one of further inquiry---Petitioner (woman accused) was granted post-arrest bail, in circumstances.

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

----S. 497(1), first Proviso---Customs Act, (IV of 1969), Ss. 2(s), 16, 156(1)(8)(70)(i)(e) & 139---Imports and Exports (Control), Act (XXXIX of 1950), S. 3(1)---Possessing gold ornaments over the allowed limit while travelling abroad---Smuggling, allegation of---Post-arrest bail, grant of---Woman accused---Entitlement to bail---Scope---Allegation against accused (a lady passenger at airport) was that, during her search, raw gold weighing 934 grams and jewelry weighing 1214 grams were recovered from her purse for which she failed to produce any valid document for transporting the same---First proviso of S.497 (1) of the Code of Criminal Procedure (Cr.P.C) stipulates that the Court may order the release on bail of any person under the age of 16 years, any woman, any person who is sick or infirm who is accused of an offence--- The term 'such an offence' in Proviso refer to offences listed under the second part of the prohibitory class of S.497 (1) of Cr.P.C, as for all other non-bailable offences, the Court is already empowered to grant bail under the first part of 497(1), Cr.P.C; therefore, the first proviso grants the Court the same discretion to grant bail in respect of offences covered by the prohibitory clause against the accused persons who are under the age of 16, women and those who are sick or infirm as it does under the first provision of 497 (1), Cr.P.C ; this means that for the persons mentioned in the first proviso to S.497, bail should generally be granted and refusal should only be in exceptional circumstances---No exceptional circumstances existed in the present case meriting dismissal of the present bail application---Petitioner (woman accused) was granted post-arrest bail, in circumstances.

PLD 2022 764; Asiya v. State 2023 SCMR 383, Ghazala v. The State 2023 SCMR 887 and Munawar Bibi v. The State 2023 SCMR 1729. ref.

Tauqeer Akram and Qaiser Satti for Applicant.

M. Amin Feroz Khan, Special Prosecutor Customs for the State.

Sehrish Nazire, Inspector/I.O.

Order

Khadim Hussain Soomro, J.---Through this bail application, the applicant has prayed for her post-arrest bail application in case FIR No. 03, dated 03.02.2025, under section 3(1) of Imports and Exports Control, read with Sections 2(s), 16, 156(1)(8)(70)(i)(e) of the Customs Act, 1969 as well as Section 139, SRO 499(1)/2009, PS I and P Branch, MCC, Preventive, Islamabad.

1. Concisely the facts referred in the instant FIR lodged on the complaint of Komal Saleem, Inspector Customs, Islamabad are that on 03.02.2015 a lady passenger namely Nighat Manzoor entered into international departure hall and not submitted any declaration at the initial custom declaration counter. However, during search of petitioner, raw gold weighing 934 grams and jewelry weighing 1214 gram were recovered from her purse and failed to produce any valid document for transporting the same. Hence, this FIR.

2. Learned counsel for the petitioner submits that petitioner is innocent and has falsely been implicated in this case; that recovered gold is legitimate being the same is declared in income tax returns and purchasing invoice is also available; that petitioner was searched by the Customs officials in violation of Section 159 of the Customs Act, 1969; that no opportunity was given to the petitioner to produce the valid documents regarding carrying such gold and jewelry; that petitioner is neither smuggler nor had been involved in any criminal activities; that instant FIR has been lodged with unexplained delay of approximately 12 hours; that case of petitioner is one of further inquiry in terms of Section 497 (2) Cr.P.C., therefore, she is entitled for concession of post-arrest bail.

3. Conversely, learned Special Prosecutor Customs has opposed the instant bail application on the ground that petitioner is directly nominated in the FIR as accused with specific role of transporting gold and foreign currency; that petitioner has failed to produce any valid documents for carrying such a huge quantity of gold, bullion, etc. to take abroad. Hence, instant petition is liable to be dismissed.

4. The accused was arrested at the airport by the customs authorities. The petitioner, being a passenger, was not yet issued any boarding card, nor did she reach the international departure lounge. To confirm whether the customs authorities can apply the minimum requirement of smuggling in terms of section 2 of the Customs Act, 1969 upon the petitioner for possessing gold ornaments. No bag tag or information about the subject bag booking in the name of the accused person was available on the record. Simply having gold ornaments over the allowed limit, which were found during a passenger's scan at the ASF scanner near the departure lounge entrance, does not automatically prove guilty intent or amount to an attempt to commit an offence. At this point, the passenger had not gone through immigration or gotten the required stamp on their passport. Even if I assume there was an initial plan to smuggle the gold, the passenger still had the chance to change their mind and give the extra gold to someone outside the departure area, as often happens in cases of excess baggage. Therefore, even if intent is assumed, the actions would not go beyond just preparing and would not be considered an actual attempt.

2025 P Cr. L J 969

[Islamabad]

Before Sardar Muhammad Sarfraz Dogar, ACJ

Mst. Saima Bibi alias Shama---Appellant

Versus

The State---Respondent

Crl. Misc. No.355 of 2025, decided on 27th February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(1), 3(c)---Possession and transportation charas---Bail, refusal of---Accused-female with a suckling baby---As per contents of FIR, the petitioner was apprehended while in possession of three packets of Charas weighing 1200 gram each, total weighing 3600 gram---Recovery proceedings were also captured in video---Alleged recovery clearly brought the case of the petitioner within the rigors contained in S.9 (c) of the Control of Narcotic Substances Act, 1997---Apparently no material was available to substantiate that such huge quantity of narcotic had been foisted upon the petitioner---Nothing was on record which could suggest that the complainant or any other member of the raiding party had any animus against the petitioner---Petitioner alleged that she was entitled to bail as her suckling baby was also with her in jail---Prime responsibility of better upbringing and welfare of children rested upon the parents---If anyone of the parents got himself or herself involved in a crime, it could not be said that he or she got indulged in the said crime by chance or inevitably against his or her intention---True that suckling babies should not be in a place like dungeons and there were chances of their future being spoiled, but at the same time, it was undeniably the responsibility of parents to keep it in mind that their intentional involvement in any crime shall bring about harm to the personality of their child, and, it was equally true that parents certainly felt the pain when their child suffered---Material available on record was prima facie sufficient to connect the petitioner with the crime and petitioner failed to point out any other substance from which High Court could infer otherwise---There was nothing on record which could prima facie cast doubt on prosecution's story qua recovery of huge quantity from her possession---When such fact was prima facie established then the question was as to why she was carrying her minor child a long with her at relevant time---There was nothing justifiable pointed out or available on record in that regard---When factum of huge quantity of narcotic from the petitioner was evaluated in juxtaposition with the fact of non-pointation of any substance pulling the case of petitioner into ambit of further inquiry or any aspect which could prima facie establish the mala fide on the part of prosecution only ground of petitioner's having suckling baby with her was insufficient for grant of bail---Prima facie, sufficient incriminating material was available on record to show the presence and connectivity of the petitioner with the alleged crime---From the tentative assessment of the material produced before the Court, High Court was of the considered view that petitioner was clearly connected with the alleged crime and bar in terms of S.51 of the Act, 1997, was fully attracted to her case---Bail petition was dismissed, in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973; Mst. Tahira Batool v. The State and another PLD 2022 SC 764; Mst. Nadia v. The State 2023 YLR 171; Mst. Asiya v. The State and another 2023 SCMR 383 and Mst. Ishrat Bibi v. The State through Prosecutor General, Punjab and another 2024 SCMR 1528 ref.

Mst. Nasira Bibi v. the State PLD 1998 Lahore 146; Mst. Taj Bibi v. The State PLD 1989 Quetta 60; Mst. Amna v. The State PLD 1989 Kar. 40; Mst. Akhtar Bibi v. The State 1989 PCr.LJ 83; Mst. Fursan v. The State 2022 SCMR 1950; Mst. Tahira Batool v. The State PLD 2022 SC 764; Mst. Nazo v. The State 2013 MLD 1860 and Malita Syed Shah v. The State 2009 YLR 1029 rel.

Muhammad Ashraf Khan for Petitioner.

Rana Zulfiqar Ali, Special Prosecutor ANF with Miss Rabia Fida S.I and Usama ASI, ANF for the State.

Order

Sardar Muhammad Sarfraz Dogar, ACJ.----Through the instant petition under Section 497 Cr.P.C., the petitioner seeks post-arrest bail in case FIR No.15, dated 21.01.2025, offence under Sections 6, 9(1), 3(c) of the Control of Narcotic Substances Act, 1997 registered with Police Station ANF, Islamabad.

1. Precisely, the allegation against the petitioner is that from her possession, total 3600 grams Charas was recovered.

2. While reiterating the grounds of instant petition, learned counsel for the petitioner has laid much emphasis on the ground that petitioner is entitled to the relief of bail as she is accompanying with minor son in the jail. While arguing so, he relied upon case law titled as "Mst. Nusrat v. The State" (1996 SCMR 973), "Mst. Tahira Batool v. The State and another" (PLD 2022 SC 764), "Mst. Nadia v. The State" (2023 YLR 171), "Mst. Asiya v. The State and another" (2023 SCMR 383) and "Mst. Ishrat Bibi v. The State through Prosecutor General, Punjab and another" (2024 SCMR 1528).

3. Heard. Record perused.

4. As per contents of FIR, the petitioner was apprehended while in possession of three packets of Charas weighing 1200 gram each, total weighing 3600 gram. The recovery proceedings were also captured in video. The punishment of Charas 1000 grams to 4999 grams is imprisonment which may extend to fourteen years but shall not be less than nine years along with fine which may be up to four hundred thousand rupees but not less than eighty thousand rupees. Therefore, the alleged recovery clearly brings the case of the petitioner within the rigors contained in Section 9 (c) of the CNSA, 1997. Apparently no material is available to substantiate that such huge quantity of narcotics has been foisted upon the petitioner. There is nothing on record which could suggest that the complainant or any other member of the raiding party had any animus against the petitioner.

5. So far as the sole ground of learned counsel for the petitioner that she is entitled to bail as her suckling baby is also with her in jail, is concerned, it is observed that prime responsibility of better upbringing and welfare of children rests upon the parents. If anyone of the parents gets himself or herself involved in a crime, it cannot be said that he or she got indulged in the said crime by chance or inevitably against his or her intention. It is true that suckling babies should not be in a place like dungeons and there are chances of their future being spoiled, but at the same time, it is undeniably the responsibility of parents to keep it in mind that their intentional involvement in any crime shall bring about the harm to the personality of their child, and, it is equally true that parents certainly feel the pain when their child suffers. The material available on record is prima facie sufficient to connect the petitioner with the crime and learned counsel for the petitioner failed to point out any other substance from which this court could infer otherwise. Therefore, at present, there is nothing on record which could prima facie cast doubt on prosecution's story qua recovery of huge quantity from her possession. And, when this fact is prima facie established then the question is as to why she was carrying her minor child along with her at relevant time? There is nothing justifiable pointed out or available on record in this regard.

6. The drug peddlers have ruined the fabric of our society and they are masters of makeshifts for transportation of drugs from one place to another and using youngsters and women is one of their tricks for the purpose. This Court feels that it is time to deal with them with iron hands and to discourage their modes and methods for implanting drugs in our generation. In case titled "Mst. Nasira Bibi v. The State" (PLD 1998 Lahore 146), learned Division Bench of Lahore High Court observed that "…this Court cannot help taking notice of the new modes deviced by human ingenuity for drug pushing and would not presume all virtues to a woman which was the hall mark of the age of chivalry. A woman is no longer domesticated but the hallow of respectability and modesty woven around the traditional woman is making her an easy conduct for many a undercover crimes. The Courts may refuse the bail if the allegations are serious and particularly under section 51 of the Narcotics Substances Act which provides that, "bail should not be normally granted", Criminal cases are not lacking when women were refused bail. In "Mst. Taj Bibi v. The State" (PLD 1989 Quetta 60), the order cancelling bail to a woman was upheld by the Court and it was observed at page 61 as under:-

"Thus females involved in such degenerated offences would not be automatically entitled to discretion merely by virtue of sex unless law so permits on merits."

Similarly view was taken in "Mst. Amna v. The State" (PLD 1989 Kar 40) and "Mst. Akhtar Bibi v. The State" (1989 PCr.LJ 83).

1. Therefore, when factum of huge quantity of narcotics from the petitioner is evaluated in juxtaposition with the fact of non-pointation of any substance pulling the case of petitioner into ambit of further inquiry or any aspect which could prima facie establish the mala fide on the part of prosecution, this Court finds that only ground of petitioner's having suckling baby with her is insufficient for grant of bail. In the case titled "Mst. Fursan v. The State" (2022 SCMR 1950), the august Supreme Court of Pakistan dismissed post arrest bail petition of a woman in narcotics case and while discussing case law titled "Mst. Tahira Batool v. State" (PLD 2022 SC 764) in detail, held as under:-

"8. The learned counsel for the State has, in the present case, pressed only the third exception, i.e., the likelihood of the petitioner to repeat the offence, on the basis of nature of the offence. This Court has described three circumstances in the Tahira Batool case that may be considered for deciding, whether or not there is likelihood of repeating the offence by the accused, which are: (i) his previous criminal record, (ii) nature of the offence, or (iii) manner of committing the offence. These circumstances are, as held by this Court in Iftikhar Ahmad v. State, only illustrative in character, and not exhaustive, and the courts may take into consideration "some other striking circumstance that impinges on the proceedings of the trial, or poses a threat or danger to the society" and thus brings the case of an accused within any of the said three settled exceptions to the rule.

9. While examining the applicability of the third exception, relied upon by the learned counsel for the State, as to the likelihood of the repetition of the offence by the petitioner, we find that the offences relating to narcotic drugs are of such a nature that do indicate the likelihood of the repetition of the offence by the accused. Dealing in narcotic drugs is usually the business of the persons involved therein, and is not a spontaneous or one time act, and the women are often involved in it as carriers for the transportation, supply and sale of narcotic drugs. The likelihood of such an offence being repeated by the petitioner cannot, therefore, be ruled out. The case of the petitioner thus comes within the scope of the exception of likelihood of repeating the offence. The reliance of the learned counsel for the petitioner on Tahira Batool case is misconceived, as in the said case also the Court observed that "the persons involved in the commission of offences of robbery or dacoity are usually the professional criminal and there is likelihood that they would repeat the offence if enlarged on bail", and distinguished the case of Tahira Batool, the women accused in the case, because she was employed in the house of the complainant as a maid. Had this distinguishing fact not been there, her case might also have fallen within the exception of likelihood of repeating the offence because of the nature of the offence of robbery."

1. Furthermore, in case titled "Mst. Nazo v. The State" (2013 MLD 1860), while dismissing the post arrest bail of woman with suckling baby held as under:-

"…The argument of the learned counsel for the petitioner that the accused/petitioner has a suckling baby and is also pregnant of four months is not convincing. Had the petitioner been concerned about her suckling baby, she would not have resorted to indulge in such activity which has afflicted our whole society and especially the younger generation. Off late, the mafia engaged in narco-business has devised new modes and means of smuggling by employing ladies and youngsters in the hope that even if caught red handed, they may be extended the concession of bail by the courts on the ground of womanhood or juvenility as the case may be. Such conduct amounts to taking liberty with the law of the land."

(Emphasis added)

2025 P Cr. L J 994

[Islamabad]

Before Tariq Mehmood Jehangiri, Babar Sattar and Arbab Muhammad Tahir, JJ

Barkat ullah---Petitioner

Versus

The State and another---Respondents

Crl. Misc. Bail No. 431-B of 2024, decided on 5th December, 2024.

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

---- S. 497--- Bail, grant of--- Principles--- Bail is directly linked to right of liberty of an individual, who, unless found guilty on conclusion of trial, has to be considered innocent--- Slightest dent, visible on tentative assessment of material available on record in prosecution's case, entitles accused to grant of bail, even if offence alleged to have been committed is hit by prohibitory clause--- Prohibition on grant of bail in S.497(1), Cr.P.C. is not absolute, rather is dependent on satisfaction of Court to that reasonable grounds exist that accused is connected with commission of offence--- No hard and fast rule can be laid down to regulate discretion of Court relating to its satisfaction for grant/refusal of bail--- Court may take into account all grounds collectively or any one of them in view of the peculiar facts and circumstances of the case and grant or refuse bail.

Aamir Faraz v. The State 2023 SCMR 308 and Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

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

---- S.497---Control of Narcotic Substances Act (XXV of 1997), S. 51(1)---Recovery of narcotic substance--- Bail--- Principle--- Term "border line case"--- Applicability--- Case not falling in prohibitory clause of S.497(1) Cr.P.C.--- Accused was alleged to have possessed 542 grams of heroin, who raised the plea that his case did not fall within the prohibitory clause of S.497 (1) Cr.P.C.--- Validity--- Bail in criminal cases registered under Control of Narcotic Substances Act, 1997 has to be decided in light of S.51(1) of Control of Narcotic Substances Act, 1997 read with S.497 Cr.P.C.--- If a provision of Control of Narcotic Substances Act, 1997 provides for maximum punishment of ten years and more, it attracts the prohibitory clause of S.497(1) Cr.P.C.--- Applicability of term "borderline case" was developed in the context of erstwhile provisions of S.9(c) of Control of Narcotic Substances Act, 1997--- This amounts to anticipating possible period of conviction at bail stage, which exercise is not permissible while making tentative assessment of a criminal case at bail stage--- Court is not barred in adjudicating a bail petition to decide the same in light of peculiar facts and circumstances of a particular case--- Full Bench of High Court directed accused to approach Trial Court of competent jurisdiction as the matter had already been transferred to a Court falling in the jurisdiction of another High Court--- Application was disposed of accordingly.

Jamal-ud-Din alias Zubairi v. The State 2012 SCMR 573; Khuda Bux v. The State 2010 SCMR 1160; Sagheer Ahmed v. The State and another 2024 SCMR 913; Reginald Chude Bjekwe v. The State 2021 MLD 2028; Faiz Rasool v. The State Cri Misc, No.1195-B/2022, IHC; Abdul Latif v. The State 2016 PCr.LJ Note 122; Altaf Hussain v. The State and another Crl. Misc, No 745-B/2022, IHC; Muhammad Akram v. The State 2020 PCr.LJ 31; Muhammad Azam Khan Swati v. The State and another 2023 PCr.LJ 350; Ghulam Haibi v. The State Crl. Misc. No.645/2024, IHC; Taj Muhammad v. The State Crl. Misc. No.293-B/2024, IHC; Hanan Ahsan v. The State Crl. Misc. No. 1650-8/2022 IHC; Asim Hanif v. The State Crl. Misc. No. 1998-B-2023, IHC; Izzat Khan v. The State Crl. Misc. No. 176/B of 2024, IHC; Arshad alias Goga v. The State 2022 PCr.LJ 198; Muhammad Shafique v. The State 2016 PCr.LJ 1315; Ismail ljaz v. The State 2023 PCr.LJ 114; Mustafa Ali v. The State 2014 PCr.LJ 1464; Ameer Ullah v. The State 2012 PCr.LJ 1858; Muhammad Hayat Khan v. The State and another 2019 PCr.LJ 472; Naeem Shah v. The State 2023 YLR 166; Umair Shaukat v. The State Crl. Misc. B.A. No.398-A/2020; Faizan v. The State 2021 YLR 629; Talib Hussain v. The State 2014 YLR 1319 Sindh; Mevo Rind v. The State 2012 YLR 151; Shehzore and another v. The State 2006 YLR 3167; Zahid Maseeh and another v. The State 2012 MLD 814; Zahid Hussain Chandio v. The State 2016 MLD 1103; Muhammad Fayaz v. The State 2010 YLR 1934; Muhammad Amin v. The State 2017 YLR 609 Sindh; Shahid Ahmed v. The State 2022 PCr.LJ Note 89; Dila Baz Khan v. The State 2008 PCr.LJ 1437; Syed Raza Hussain Bukhari v. The State through D.A.G, and others PLD 2022 SC 743; Iftikhar Ahmed v. The State through P.G. Punjab and another PLD 2021 SC 799; The Code of Criminal Procedure Amendment. Act, 1923 18 of 1923; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Subhan Khan v. The State 2002 SCMR 1797; Riaz Jafar Natiq v. Muhammad Nadeem Dar 2011 SCMR 1708; Bilal Khan v. State 2020 SCMR 937; Sheqab Muhammad v. The State 2020 SCMR 1486; Ghazan Khan v. Mst. Ameer Shuma 2021 SCMR 1157; Majid Ali v. The State and another 2022 PCr.LJ 981; Abdul Malik v. The State PLD 1968 SC 349 and Muhammad Nadeem v. The State and aother 2023 SCMR 184 ref.

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

----S. 497(1)---Expression "punishable"--- Scope--- Expression "punishable" used in S.497(1) Cr.P.C. refers to maximum punishment provided for an offence--- If offence is punishable by ten years or more, then subject to other legal grounds, the same would attract statutory prohibition contained in S.497(1) Cr.P.C.

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

----S. 49A---Criminal Procedure Code (V of 1898), S. 169---Investigation of narcotic cases--- Duty of Court and investigating officer---Physical remand---Duration---After insertion of S.49A in Control of Narcotic Substances Act, 1997 maximum period of remand is ninety days---Investigation in narcotics cases is not limited to mere recovery of narcotic substance from peddler but extends to the source, manufacturer, cultivator, seller, dealer, etc.---Magistrate while dealing with request of remand should give due consideration to facts and circumstances of the case and the scheme of Control of Narcotic Substances Act, 1997 and grant physical remand of accused for a reasonable period---Investigating complete chain in commission of offence (including source of supply) under Control of Narcotic Substances Act, 1997 and tracing the assets derived out of such illicit trade/dealing is the duty of investigating agency and not a discretion--- Investigating officer should investigate all persons and trace their assets involved in commission of offence under Control of Narcotic Substances Act, 1997.

Muhammad Ilyas Khan, Mujahid Khan, Danish Akbar Khan and Waqar Ahmed Khan for Petitioner.

Rana Zulfiqar Ali, Special Prosecutor, ANF, Tahir Kazim, Law Officer, ICT Police, Dr. Tanvir Ahmed, Incharge, Federal Narcotics Testing Lab for Respondent.

Malik Abdul Rehman, State Counsel/Amicus Curiae.

Assisted by Sajjad Ali, Law Clerk.

Date of hearing: 27th June, 2024.

Order

Arbab Muhammad Tahir, J.---This Bench has been constituted to decide the legal questions raised by my lord Mr Justice Babar Sattar, J. while hearing a bail petition wherein the petitioner accused of possessing 542 grams of heroin, pleaded the ground that his case is not covered under the prohibitory clause of section 497(1) of the Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C."). My lord Mr Justice Babar Sattar, J. in his order, dated 18.03.2024, has highlighted several judgments of the Supreme Court as well different High Courts (including this Court), wherein contradictory views with regard to application of the prohibitory clause contained in section 497(1) Cr.P.C. have been taken. The legal questions for our consideration framed vide order, dated 18.03.2024, are as follows.-

a) While defining which offence falls within the prohibitory clause under section 497(1) of Cr.P.C, is the maximum punishment for the said offence to be taken into account or is the minimum or alternative punishment of fine etc. to be taken into account?

b) What weight of a contraband, where such contraband is heroin, qualifies as a borderline case, which, in the absence of any other grounds for bail, would suffice to make the case one of further inquiry on the basis of doubt as to whether such case attracts the statutory prohibition of section 497(1) of Cr.P.C or not?

1. The learned counsel for the petitioners have relied upon various judgments of the Supreme Court as well as the High Courts including this Court, wherein bail has been granted to the accused person keeping in view lesser or alternate punishment provided for an offence.

2. In order to answer the above legal questions, it would be appropriate to reproduce section 497(1) Cr.P.C. for convenience.-

497. When bail may be taken in cases of non-ballable offence. (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on ball, but he shall not be so released if there appears reasonable grounds for believing that he has been quilty of an offence punishable with death or imprisonment for life or imprisonment for ten years:

Emphasis supplied

1. The first part of Section 497(1) Cr.P.C. provides that if a person accused of a non-bailable offence is arrested, he may be released on bail. Because of the enabling expression, "may be released on bail", used in this part, read with the basic principles of criminal justice, the grant of bail in a non-bailable offence that does not fall within the second part of Section 497(1) Cr.P.C. is said to be a rule and refusal, an exception. The second part of Section 497(1) Cr.P.C. provides that an accused shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. This part of Section 497(1) Cr.P.C. which prohibits the grant of bail in certain offences is popularly known as the prohibitory clause of Section 497(1) Cr.P.C. (Syed Raza Hussain Bukhari's case)

2. The main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society, if there is an apprehension of repetition of offence or commission of any other untoward act by the accused. Therefore, in order to make the case of an accused person fall under the exception to the rule of grant of bail in offences not covered by the prohibitory clause of Section 497(1) Cr.P.C., the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person is released on bail. (Iftikhar Ahmed's case)

3. In the facts and circumstances of the case, the word "punishable" used in section 497(1) of Cr.P.C. needs interpretation so as to determine whether such expression means the "maximum" punishment provided for an offence. In this regard it would be advantageous to briefly discuss the legislative history of section 497(1) Cr.P.C.-

Evolution of Section 497(1):

· Initially, the provision prohibited bail if there were reasonable grounds to believe the accused was guilty of a non-bailable offence.

· In 1923, this prohibition was limited to offences punishable with death or transportation for life.

· In 1974, the prohibition was extended to offences punishable with death, imprisonment for life, or imprisonment for ten years.

Current Legislative Intent:

· The legislative intent of section 497(1) is clear: bail is generally permissible for offences where the maximum punishment is less than ten years.

· For offences punishable with up to ten years' Imprisonment, the court must determine if there are reasonable grounds to believe the accused is guilty of such an offence.

1. The Supreme Court, in Tariq Bashir's case observed that It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. has divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment for life or imprisonment for ten years; and (ii) offences punishable with Imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So bail will be declined only in extraordinary and exceptional cases, for example.-

(a) where there is likelihood of absondance of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict.

1. The above principles were reaffirmed by the Supreme Court in the cases of Zafar Iqbal, Subhan Khan and Riaz Jafar Natiq. The fact that in case of offences for which maximum punishment of ten years and more is provided, fall within the prohibitory clause of section 497(1) Cr.P.C. has also been affirmed by the Supreme Court in the cases of Bilal Khan, Sheqab Muhammad and Ghazan Khan.

2. In Majid Ali case, this Court has interpreted the expression "punishable" used in section 497(1) Cr.P.C. as follows.-

"The word "punishable" has been defined by Black's Law Dictionary to mean "subject to a punishment" when used in relation to a person. The ordinary dictionary meaning of the word "punishable" therefore clarifies that in the event that an offence that a person has been charged with could possibly result in the punishment of ten years in prison such offence would fall within the prohibitory clause. Thus, any offence in relation to which punishment has been prescribed in the form of a range and it has been left to the court to determine the sentence in view of the facts of the case, but the maximum punishment that could possibly be awarded for such offence is ten years, would fall within the prohibitory part of section 497(1) of Cr.P.C. Simply put, it is the maximum punishment and not the minimum prescribed in relation to an offence under P.P.C. that determines whether or not the accused is "punishable" for ten years and whether the offence in question falls within the prohibitory clause or not. At bail stage it is not for the court to try and predict the possible sentence that would be imposed on a person under arrest for being an accused of a non-bailable offence.

1. The expression "punishable", therefore, refers to maximum sentence or punishment provided for an offense. In other words, if a penal provision makes an offence punishable by ten years, it refers the power of the court to award a sentence upto ten years in prison, if found guilty. However, on conclusion of trial, the actual sentence imposed by the court may be less than the maximum punishment, depending on various factors, such as severity of offence, offender's criminal history, mitigating circumstances and discretion of the court.

2. There is another aspect of the matter, i.e. can we relate the expression "punishable" to the minimum sentence provided for an offence? There are some arguments to support an affirmative answer to this question as well. Let us first discuss the arguments and then we will try to put the same in juxtaposition to section 497(1) Cr.P.C. Subject to the final conclusion, few of the grounds are as follows.-

(i) When law presumes the accused to be innocent until proven guilty, and the minimum sentence is specified, then the term "punishable" can be related to the minimum sentence. In this context, the expression "punishable" may Imply a minimum threshold of punishment, rather than the maximum. It is a way of acknowledging the accused's presumed innocence while still holding him accountable for the offense if found guilty.

(ii) In criminal law, statutes are often interpreted in favor of the accused. This means that any ambiguity in the law should be resolved in a way that benefits the accused. In this case, interpreting "punishable" to mean the minimum sentence is more favorable to the accused than interpreting it to mean the maximum sentence. The legislative intent behind prohibiting bail for offenses punishable by ten years and more may be to ensure that serious offenses are not taken lightly. However, this intent should not override the presumption of innocence and the principle of interpreting statutes in favor of the accused.

(iii) Interpreting the expression "punishable" to mean the minimum sentence ensures consistency with right of accused to principles of fair trial and due process. It may ensure that the accused is not denled bail without a fair trial and that their rights are protected throughout the criminal proceedings.

1. Let us now put the above arguments in juxtaposition to section 497(1) Cr.P.C. It provides that (1) when a person accused of non-bailable offence is arrested; he may be released on bail, (ii) but shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. If the case of an accused falls within the ambit of first category, then grant of bail is a rule and refusal an exception. However, if it is hit by the second category, then there is statutory prohibition on grant of ball. Now if we interpret the expression "punishable" to mean the minimum punishment provided for an offence so as to favour of the accused due to his presumed innocence at bail stage, then it will render the first category of section 497(1) Cr.P.C. as redundant in offences which only provides for maximum punishment of imprisonment. To explain further, if a penal provision makes an offence punishable to imprisonment of twenty years without mentioning the minimum limit or it provides an alternate penalty of fine, then such a case may never attract the statutory prohibition, which interpretation would be against the spirit of section 497(1) Cr.P.C. Thus the above interpretation would circumvent the statutory prohibition contained in section 497(1) Cr.P.C. The above arguments, therefore, cannot stand in conjunction with the basic provision of law governing bail.

2. The above discussion leads us to conclude that the expression "punishable" used in section 497(1) Cr.P.C. refers to the maximum punishment provided for an offence. Thus if an offence is punishable by ten years or more, then subject to other legal grounds, the same would attract statutory prohibition contained in section 497(1) Cr.P.C.

3. Now we shall advert to the second question i.e. what weight of a contraband, where such contraband is heroin, qualifies as a borderline case, which, in the absence of any other grounds for bail, would suffice to make the case one of further inquiry on the basis of doubt as to whether such case attracts the statutory prohibition of section 497(1) of Cr.P.C or not?

4. Section 497(1) Cr.P.C. has to be read with section 51 of the Act of 1997, which lays down guidelines for grant of bail in narcotics cases. Subsection (1) of section 51 of the Act of 1997 provides that notwithstanding anything contained in sections 496 and 497 of the Cr.P.C. bail shall not be granted to an accused person charged with an offence under the Act of 1997 or under any other law relating to narcotics where the offence is punishable with "death". Subsection (2) provides that in the case of other offences punishable under the Act of 1997, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount. Section 9 of the Act of 1997 has been substituted through section 6 of the Control of Narcotic Substances (Amendment) Act, 2022, through which the capital punishment of "death" provided in the erstwhile provisions i.e. section 9(c) of the Act of 1997 (since substituted) has been omitted. Section 51(1) of the Act of 1997 has, therefore, been rendered redundant by legislature as it prohibited grant of bail in an offence entailing death penalty, which penalty no longer exists in the Act of 1997 and is no more relevant as no corresponding amendments have been made. Whereas, subsection (2) of section 51 of the Act of 1997 lays down two guidelines for grant of bail in offences under the Act of 1997 viz, (i) when it is a fit case for grant of bail and (ii) against the security of substantial amount.

5. The Supreme Court in Tariq Bashir's case supra has held that as regards the first category of offences (punishable with death, or imprisonment for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to belleve that the accused is guilty of offence punishable with death, Imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e. will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of defence at that stage.

6. Similarly, in the Supreme Court in Abdul Malik's case, has explained the expression "reasonable grounds" used in section 497(1) Cr.P.C. as follows.-

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

1. Furthermore, the Supreme Court in Muhammad Nadeem's case, explained the expression "further Inquiry" used section 497(2) Cr.P.C. as follow.-

"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 ån 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. The expression "fit case for the grant of bail" used in section 51(2) of the Act of 1997 has to be interpreted in light of the provisions of section 497 Cr.P.C., inter alia, the words "reasonable grounds", "further inquiry" and "statutory period", etc. The Supreme Court in Amir Faraz's case has observed that it is settled law that in criminal matters, each case has its own peculiar facts and circumstances and the same has to be decided on its own facts. The decision whether to grant or refuse bail, depends upon multiple factors, even if the alleged offence is hit by the prohibitory clause of section 497(1) Cr.P.C. All those factors can be considered collectively as well as in isolation so as to reach a just conclusion. The question of bail is directly linked to right of liberty of an individual, who, unless found guilty on conclusion of trial, has to be considered innocent. Therefore, a slightest dent, visible on tentative assessment of material available on record, in the prosecution's case, would entitle the accused to grant of bail, even if the offence alleged to have been committed is hit by the prohibitory clause. The prohibition on grant of bail in section 497(1) Cr.P.C. is not absolute, rather dependent on satisfaction of the Court to believe that reasonable grounds exists that the accused is connected with the commission of offence. No hard and fast rule can be laid down to regulate discretion of the Court relating to its satisfaction for grant/refusal of bail. The Court may take into account all the grounds collectively or any one of them in view of the peculiar facts and circumstances of the case and grant or refuse bail. In Manzoor's case, the Supreme Court has laid down the golden principle relating to bail. In the referred case it was held that "It is to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegations that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and Incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

2. Having concluded that bail in criminal cases registered under the Act of 1997 has to be decided in light of section 51(1) of the Act of 1997 read with section 497 Cr.P.C., It is held that if a provision of the Act of 1997 provides for maximum punishment of ten years and more, It shall attract the prohibitory clause of section 497(1) Cr.P.C. The applicability of the term "borderline case" developed in the context of erstwhile provisions of the Act of 1997 l.e. section 9(c), would amount to anticipating possible period of conviction at bail stage, which exercise is not permissible while making tentative assessment of a criminal case at bail stage. This, however, shall not bar the Court adjudicating a bail petition to decide the same in light of peculiar facts and circumstances of a particular case.

3. We had appointed Mr Tanveer Ahmed Khan, Incharge Federal Narcotics Testing Laboratory, Islamabad to assist us on the point of variance in weight of recovered narcotic substance due to the packing/wrapping material particularly when it is packed in capsules. The learned amicus appeared and explained to us the question in detail. He also submitted his written report, the relevant portion whereof is as follows.-

"It is submitted that these handmade capsules have various sizes and quantity of packing material also varies with each capsule. However, the weight of packing material up to 15% of total weight of a capsule has been observed in our current laboratory practices."

He, however, submitted that since the whole quantity of recovered contraband is kept by the police in safe custody and only a representative sample is sent to the Laboratory for chemical analysis, therefore, he is unable explain the average weight of other wrapping materials i.e. solution tape, plastic shopping bag, etc.

1. During the proceedings, certain queries were put to the prosecution, regarding the quality, mechanism and procedure of investigation in narcotics cases and the Inspector General of Police and Director General, Anti-Narcotics Force were directed to submit reports. Accordingly they submitted their respective reports. The Islamabad Police in its written report has submitted that (1) in most of the cases, the accused person discloses that narcotic substance was brought from "illaqa ghair", where access is not possible due to lack of resources, (ii) due to insufficient funds and time, narcotic source is only traced if it is located in Islamabad or adjacent cities, (iii) till date no investigations are carried out to trace the assets derived out of the illicit drug dealing; (iv) courts normally grant two/three days physical remand of the accused for the purpose of investigation. The report submitted by the Anti-Narcotics Force reveals that, (i) during the period from April 2022 April 2024, multiple assets inquiries were conducted and assets worth Rs.210,246,705/- (approximately) were traced and submitted before the court for proceedings in accordance with law, (ii) ANF is performing duties with limited resources and manpower, (iii) out of 977 registered criminal cases, in 932 cases physical remand for 01 day, in 41 cases 2 to 3 days and only in 04 cases more than three days physical remand has been granted by the courts for the purposes of investigation, (iv) in the two years' period sixty one inquiries were initiated against delinquent investigators.

2. The reports submitted by the two investigating agencies shows that criminal cases relating to narcotics are not being investigated according to the spirit of the Act of 1997. As a result of such faulty investigations, the society shall suffer as it is exposed to risk of narcotics/drugs abuse. Not investigating the main culprits/sources of narcotic substance in a criminal case amounts to granting them licence to violate the Act of 1997 and cause irreparable damage to the society.

3. The Act of 1997 has been enacted to prohibit possession of narcotic substances and rehabilitate victims of drug abuse. To ensure strict adherence to the provisions of the Act of 1997, penalties have been provided under section 9 thereof. In order to ensure that no one indulges in the dealing and trafficking of narcotic substances in violation of the Act of 1997, the profit derived and properties acquired out of such profit have been declared as liable to confiscation. How can this goal be achieved? Will the State establish separate entities to enforce each provision of the Act of 1997 and let the police/ANF proceed with investigations of narcotics cases without due adherence to provisions of the Act of 1997?

4. When a criminal case is registered on the allegation of possession of narcotic substance, the accused is normally arrested at the spot. Then the line of investigation (without prejudice to the Act of 1997 and the rules made thereunder) should be.-

(i). to Investigate from whom the recovered narcotic substance was received/purchased by accused;

(ii). to whom the delivery of narcotic substance was intended;

(iii). to investigate the purpose/ultimate utilization for the.recovered narcotic substance;

(iv). to trace the drug abusers (for their rehabilitation);

(v). who are deriving financial benefits and the use/purpose of the derived finance/ assets;

(vi). who are the persons engaged in the business in contraverition of the Act of 1997 (starting from cultivator/manufacturer to the end abuser);

(vii). and which are the assets derived by persons engaged in dealing with narcotics.

1. The Act of 1997 provides for a comprehensive mechanism to deal with narcotics cases so as to curb the menace of drug abuse, which in fact is a great threat to the society and adversely affecting citizens. It is mandatory for the Investigating Agencies to conduct Investigations on true lines in accordance with the spirit of the Act of 1997. Sections 6, 7 and 8 of the Act of 1997 prohibit possession of narcotic drugs, its import, export and trafficking or financing the trafficking of narcotic drugs. Section 8(a) provides that no one shall organize, manage, traffic in or finance the import, transport, manufacturing or trafficking of narcotic drugs, psychotropic substances or controlled substances. Section 14 of the Act provides that no one shall, within or outside Pakistan, participate in, associate or conspire to an offence punishable under the Act of 1997.

2. Chapter IV of the Act of 1997 deals with freezing and forfeiture of assets. Section 37 empowers the Court and appropriate officers to order freezing of assets. Section 38 empowers the investigating agency to trace and identify assets acquired through illicit involvement in narcotics. Section 39 provides that after the accused is convicted of an offence under the Act of 1997, on request of the investigating agency, the Court is empowered to order forfeiture of assets of the convict, or as the case may be, his associates, relatives or any other person holding or possessing assets on behalf of the convict. It is also pertinent to refer to section 42 of the Act of 1997, which makes the acquisition of assets, frozen under the provisions ibid, punishable with imprisonment for a term which may extend to three years and with fine.

3. Section 49A (Remand) has been inserted through section 19 of Control of Narcotic Substances (Amendment) Act, 2022 in the Act of 1997, which provides that a person arrested for breach of the provisions thereof shall, having regard to the facts and circumstances of the case, be liable to be detained in custody for the purpose of inquiry or investigation not exceeding "ninety days". The Magistrate while dealing with the request for remand of the accused submitted by the investigating officer is, therefore, bound to consider such request keeping in view the scope of investigations provided under the Act of 1997. It is generally understood that after recovery of narcotic substance further physical remand would be futile. Such concept is violative of the basic spirit of the Act of 1997. Curbing the menace of drug/narcotic abuse is not an easy task; rather the same would require restless efforts of every stakeholder in the criminal justice system. One case of narcotic substance, if Investigated in the manner in which the Act of 1997 is structured, would bring to justice the whole chain i.e. cultivator/ manufacturer, peddler, seller and drug abuser and would serve as deterrent factor in the society. The manner in which narcotics cases are being investigated favours the real culprits. The drug peddlers are caught and sent to jail. Nobody dares to investigate the giants who derive profits out of such illicit drug/narcotic deals. Their assets are never Investigated. The two ends i.e. drug dealer, cultivator, manufacturer and the drug/narcotic abusers are never held accountable. This would never have been intention of the legislature while enacting the Act of 1997. Investigating the assets (derived from the proceeds of illicit drug dealing) of persons involved in narcotics cases is mandatory for making a request to the Court by the investigating agency for confiscation/forfeiture of the same. It is, therefore, not the discretion but a bounden duty of the investigating agency to investigate complete chain in the commission of offence and trace the assets derived out of such illicit trade.

4. For what has been discussed above, it is held and declared as follows.-

(a) The expression "punishable" used in section 497(1) Cr.P.C. refers to the maximum punishment provided for an offence. Thus if an offence is punishable by ten years or more, then subject to other legal grounds, the same would attract statutory prohibition contained in section 497(1) Cr.P.C.

(b) It is held that if a provision of the Act of 1997 provides for maximum punishment of ten years and more, it shall attract the prohibitory clause of section 497(1) Cr.P.C. The applicability of the term "borderline case" developed in the context of erstwhile provisions of the Act of 1997 i.e. section 9(c), would amount to anticipating possible period of conviction at bail stage, which exercise is not permissible while making tentative assessment of a criminal case at bail stage. This, however, shall not bar the Court adjudicating a bail petition to decide the same in light of peculiar facts and circumstances of a particular case.

2025 P Cr. L J 1022

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Nosherwan Adil and another---Petitioners

Versus

Altaf Hussain Shah and 3 others---Respondents

Writ Petition No. 2181 of 2024, decided on 5th December, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154, 156(3), 190 & 200---Registration of criminal case---Power of Justice of Peace---Scope---Proceedings before the Justice of Peace, nature of---Alternate statutory remedy, availability of---Refusal of the S.H.O. to register a criminal case on the ground of civil litigation and absence of cognizable offence---Application filed by the respondent before Ex-Officio Justice of Peace for registration of criminal case was accepted keeping aside the police report without assigning any reason---Validity---Once Ex-Officio Justice of Peace called for the police report, he could not ordinarily brush aside the same; in case he proposed to give his opinion contrary to the police report, he was supposed to furnish tangible reasons for not relying upon the police report---Ex-Officio Justice of Peace while passing the order had not mentioned any plausible reasons for not relying on the report submitted by the police rather passed the order in a mechanical manner---In exercise of powers under S.22-A, Cr.P.C., the Justice of Peace is not supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration of an FIR, but instead, in order to safeguard against misuse or abuse of such process, the Justice of Peace has to apply his judicial mind and has to satisfy himself that prima facie there is some material available on record to support such version---Proceedings before Justice of Peace are quasi judicial and are not executive, administrative or ministerial to deal with the matters mechanically rather the same are quasi judicial powers, and every case before him demands discretion and judicial observations---Respondent had alternative statutory remedies under Ss. 156(3) & 190, Cr.P.C., as well as remedy to file private complaint under S.200, Cr.P.C., to press and prove his allegation before the court of competent jurisdiction---Constitutional petition was allowed while setting aside the order passed by the Ex-Officio Justice of Peace and giving liberty to respondent to file a private complaint.

Muhammad Ashar Halim Quraishi v. Ex-Officio Justice of Peace/Additional Sessions Judge, East Islamabad and 3 others 2022 PCr.LJ 534 and Younas Abbass and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

Ch. Hafeez Ullah Yaqub, Raja Muhammad Mudassir Iqbal and Assad Ullah for Petitioners.

Aamir Nadeem Tabish and Sheikh Azeem Shamas for Respondent No. 1.

Muhammad Naseem Khan, State Counsel and Riaz Hussain Noon, S.I. for the State.

order

Tariq Mehmood Jahangiri, J.--- Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with section 561-A, Cr.P.C., the petitioners have challenged order dated 06.07.2024, passed by learned AD&SJ / Judge Special Anti-Rape Court, East-Islamabad/Ex-Officio Justice of Peace, whereby petition filed by respondent No.1 under Sections 22-A and 22-B, Cr.P.C., for registration of FIR against the petitioners, has been allowed and order for registration of FIR against the petitioners has been passed.

1. Succinctly stated facts of the matter are that respondent No. 1 filed an application before SHO concerned for registration of FIR against the petitioners, however, the police has refused to register the same. Being aggrieved, the respondent No. 1, filed an application under sections 22-A and 22-B, Cr.P.C., which was accepted by learned AD&SJ / Judge Special Anti-Rape Court, East-Islamabad, vide impugned order dated 06.07.2024, hence the instant writ petition.

2. Learned counsel for the petitioners, inter-alia, contends that the contents of proposed FIR do not constitute a cognizable offence; there is no criminality reflected in the proposed FIR; there is a civil litigation pending between the parties; respondent No.1 has also filed a petition for contempt of Court before learned Civil Court, Islamabad, cognizance has been taken by the Civil Court. Learned counsel further contends that the Superintendent of Police (Complaints), Islamabad has also furnished report before the Court of learned Justice of Peace, wherein it is mentioned that no such occurrence has taken place, dispute is of civil nature between the parties; impugned order is erroneous and not tenable under the law, hence the same is liable to be set-aside.

3. Learned counsel for respondent No.1 has controverted the arguments advanced by learned counsel for the petitioners and has stated that impugned order dated 06.07.2024, has been passed strictly in accordance with law and facts of the case; the occurrence is admitted, regarding which FIR is liable to be registered against the petitioners; FIR proposed clearly constitutes a cognizable offence; police is duty bound to register the FIRunder Section 154, Cr.P.C., whenever information regarding commission of cognizable offence is received but in this case police has committed violation of law and has not performed its legal obligations, respondent No. 1 filed a petition under Section 22-A/B, Cr.P.C. before the Court of learned Sessions Judge, Justice of Peace, East-Islamabad, which was allowed vide order dated 06.07.2024, and has prayed to dismiss the instant petition.

4. Arguments heard, record perused.

5. Civil suit filed by respondent No. 1, against the petitioners is pending adjudication in the Civil Court of Islamabad; the petitioners and respondent No.1 are co-owners of the land in question. Learned counsel for respondent No. 1 has stated that the petitioners/proposed accused are not in possession of the land mentioned in the proposed FIR. It was further stated that the petitioners visited the site with a tractor and left shortly thereafter. Additionally, Respondent No. 1 has neither undertaken construction on the land nor established constructive possession of the property mentioned in the complainant.

6. SP (Complaints) has submitted report, wherein it is stated that neither the respondent No. 1 filed any application at the time of alleged occurrence nor produced any evidence in support of his allegations, dispute pending between the parties is of civil nature and has prayed for dismissal of petition filed by respondent No. 1, under sections 22-A and B, Cr.P.C.

7. Learned Ex-Officio Justice of Peace once called for the police report, cannot ordinarily brush aside the same, in case he proposed to give his opinion contrary to the police report, he was supposed to furnish tangible reasons for not relying upon the police report. Reliance is placed upon a case titled as Muhammad Ashar Halim Quraishi v. Ex-Officio Justice of Peace/Additional Sessions Judge, East Islamabad and 3 others (2022 PCr.L.J 534).

8. There is distinction in sections 22-A(6) and 154, Cr.P.C, for convenience both the sections are reproduced here under:

Section-22-A(6):

An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

i) Non-registration of criminal case;

ii) Transfer of investigation from one police officer to another; and

iii) Neglect, failure or excess committed by a police authority in relation to its functions and duties."

Section 154 Cr.P.C Information in cognizable cases:

Every information relating to the commission of a cognizable offence if given orally to an officer incharge of a police station, shall be reduced into writing by him or under his direction, and be read over to the informant, information, and every such whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."

1. By comparing the abovementioned provisions of the Criminal Procedure Code, it is established that in section 154, Cr.P.C., the word shall have been used while in section 22-A(6), Cr.P.C., the word may have been used, which manifests the intention of the legislature that the Justice of Peace is still left with discretion to pass an order for the registration of FIR that's too in appropriate/certain cases.

2. The Larger Bench of Supreme Court of Pakistan in a case titled as Younas Abbass and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), has held that:

"Functions performed by Ex-officio Justice of Peace under S.22-A (6) Cr.P.C.---Such functions being quasi-judicial in nature could not be termed as executive, administrative or ministerial. Said functions were complementary to those of the police and thus did not amount to interference in the investigative domain of the police…Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lahore 470 and Muhammad Ali v. Additional I.G, PLD 2015 SC 753 dissented from.

Functions performed by the Ex-officio Justice of Peace were not executive, administrative or ministerial inasmuch as he did not carry out, manage or deal with things mechanically. Such functions as described in clauses (i), (ii) and (iii) of section 22-A(6) Cr.P.C, were quasi-judicial as Ex-officio Justice of Peace entertained applications, examined the record, heard the parties, passed orders and issued directions with due application of mind. lis before Every demanded discretion him and judgment. Functions so performed could not be termed as executive, administrative or ministerial on any account."

1. In exercise of powers under section 22-A, Cr.P.C., the Justice of Peace, is not supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration of an FIR, but instead, in order to safeguard against misuse or abuse of such process, the Justice of Peace has to apply his judicial mind and has to satisfy himself that prima-facie there is some material available on record to support such version. Reliance in this regard is placed on additional note of judgment of the Supreme Court in the case reported as Younas Abbas and others v. Additional Sessions Judge, Chakwal (PLD 2016 SC 581), wherein following was observed:

"2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal Procedure) would unmistakably reveal that these provisions especially Section 22-A of the Code of Criminal Procedure, though beneficial and advantageous to the public at large, yet in myriad cases, it has been misused and abused.

Once a false criminal case is registered against an individual, it becomes exceedingly difficult for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to humble and harass the opposite party. In such a milieu, powers given to an ex-officio Justice of the Peace under subsection (6) of Section 22-A, Code of Criminal Procedure, to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case (Clause-i) and for transfer of investigation from one police officer to another (Clause-ii) though efficacious and expeditious besides being at the doorstep, but at the same time, these provisions should not be unbridled or open-ended. These provisions must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements. Therefore:-(i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under subsection (6)(i) of section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.

(ii)......"

1. Learned Additional District and Sessions Judge/Ex-Officio Justice of Peace, East-Islamabad while passing the impugned order has not mentioned any plausible reasons for not relying on the report, submitted by Superintendent of Police (Complaints), Islamabad rather passed the impugned order in a mechanical manner.

2025 P Cr. L J 1109

[Islamabad]

Before Muhammad Azam Khan, J

Muhammad Ayaz Khan---Petitioner

Versus

Ms. Iman Haider Syed---Respondent

Petition for Special Leave to Appeal\ No. 11 of 2024, decided on 21st March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 417(2)---Appeal against acquittal, filing of---Private complaint dismissed in default---Appeal against acquittal in a case instituted upon a (private) complaint---Scope---Private complaint was filed, but the cursory statement of the complainant had not yet been recorded due to his non-availability and complaint was dismissed due to non-appearance of the complainant and for non-compliance with the persistent orders of the Court---Validity---Complaint was dismissed at the initial stage; it had not yet been processed under S.204, Cr.P.C, and no notice or summons had been issued to the accused---When the summons is issued and the case is fixed for the attendance of the accused, the Court can dismiss the case for non-prosecution due to the non-appearance of the complainant and consequently acquit the accused---In the present case, no process was issued to the accused for attendance---Trial of an accused commenced when the accused was summoned and charge was framed against him---Case of the appellant/complainant did not fall under S. 403, Cr.P.C, as neither the accused was summoned, nor the charge was framed against the accused, resultantly he was neither acquitted nor convicted---Furthermore, in the Explanation of S.403, Cr.P.C it was mentioned that the dismissal of a complaint and stopping of proceedings under S.249, Cr.P.C [or the discharge of the accused] was not acquittal for the purposes of this Section---Dismissal of the complaint did not amount to acquittal of the accused, therefore, S.403, Cr.P.C would not be applicable in the present case---In the present case, since the proceeding were at a preliminary stage and the complaint was dismissed under S.403, Cr.P.C, that did not constitute an acquittal of the accused---Therefore, an appeal under S.417(2-A), Cr.P.C, could not be filed---Appeal being not maintainable was dismissed.

Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz Sharif and others 2019 PCr.LJ 665; Zahoor and another v. Said-ul-Abrar and another 2003 SCMR 59; Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687; Muhammad Akram v. Haji Mir Aziz Ahmed and 3 others 2000 P Cr.LJ 489; Saeed Ahmed v. Abdul Shakoor and another 2005 PCr.LJ 1631 and Abdul Majid v. MD. Mansur Ali and 14 others 1969 PCr.LJ 692 rel.

Dr. Babar Awan for Appellant.

Rana Hassan Abbas, Assistant District Public Prosecutor (ADPP) for Respondent.

Date of hearing: 21st March, 2025.

Judgment

Muhammad Azam Khan, J.---Through the instant Appeal, the Appellant/Complainant has assailed the Order dated 25.10.2024 ("Impugned Order") passed by the learned Additional Sessions Judge-IX, Islamabad-West ("Additional Sessions Judge") whereby the Complainant under Section 200, Code of Criminal Procedure, 1898 ("Cr.P.C") filed by the Appellant/Complainant has been dismissed for non-appearance of the Appellant/Complainant and for non-compliance with the persistent orders of the Court.

1. The brief facts of the case in hand as per the contents of the Appeal are that the Appellant/Complainant filed a Private Complaint under Section 200, Cr.P.C Court against Respondent No. 1 before the learned Additional Sessions Judge (West), Islamabad. The said Complaint was at preliminary stage and the Appellant/Complainant was given a last opportunity to record his cursory statement, however, he did not appear before the learned Court due to the illness of his wife. The learned Additional Sessions Judge vide Impugned Order dismissed the Complaint for non-appearance of the Complainant and for non-compliance with the persistent orders of the court, which mandated the recording of his cursory statement. Being aggrieved of the Impugned Order, the Appellant/Complainant has filed the instant Appeal.

2. The learned counsel for the Appellant/Complainant argued that the case was at preliminary stage and there was no other party whose rights could have been affected by allowing the adjournment on a most appropriate ground; that the Complaint should have been decided on merits instead of knocking out the same on technical grounds alone; that the Impugned Order is against the law, facts, and principles of Administration of Criminal Justice; that the learned Additional Sessions Judge did not apply its independent judicial mind and wrongly dismissed the Complaint; that the Impugned Order has resulted into grave miscarriage of justice; and that the Impugned Order is based on misreading and non-reading of the facts. Lastly, the learned counsel prayed that instant Appeal may kindly be accepted, Impugned Order may be set aside, and observation may kindly be made for filing of second complaint.

3. On the other hand, learned ADPP vehemently resisted the instant appeal and prayed for its dismissal.

4. I have heard the learned counsel for the parties and have also perused the record with their able assistance.

5. After hearing arguments from both sides, two moot questions arise in this case:-

a. Whether the Complaint under Section 200, Cr.P.C could be dismissed for non-prosecution or not?

1. In this regard, it is important to determine at what stage the Complaint was 68 when it was dismissed for non-prosecution. A review of the record shows that the Private Complaint was filed, but the cursory statement of the complainant had not yet been recorded due to his non-availability, indicating that the matter was still at the preliminary stage. The Appellant/Complainant failed to appear before the learned Additional Sessions Judge on the scheduled date for recording his cursory statement. As a result, the Complaint was dismissed due to his non-appearance and failure to comply with the orders of the Court. Since the Complaint was dismissed at the initial stage, it had not yet been processed under Section 204, Cr.P.C., and no notice or summons had been issued to the accused. Section 203, Cr.P.C. is pertinent here and is reproduced as follows:-

"203. Dismissal of complaint. [The Court] before whom a complaint is made or to whom it has been transferred [or sent] may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry if any under section 202 there is in his judgment no sufficient ground for proceeding In such case he shall briefly record his reasons for so doing"

In this regard, the other relevant Section on dismissal of complaint for non-prosecution is Section 247, Cr.P.C which is reproduced as under:-

"247. Non-appearance of complainant. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:

Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case:

[Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable.]"

1. Section 247, Cr.P.C ibid reveals that if the summons has been issued to the accused and case is fixed for the attendance of the accused and if the complainant fails to appear before the Court, the Court shall dismiss the case for non-prosecution and will acquit the accused from the case. However, in the proviso of Section 247, Cr.P.C, it is mentioned that this Section will not apply where the offence is either cognizable or non-compoundable. When the summons is issued and the case is fixed for the attendance of the accused, the Court can dismiss the case for non-prosecution due to the non-appearance of the complainant and consequently acquit the accused. In the instant case, no process was issued to the abused for attendance. When the Court does not dismiss the Complaint under Section 203, Cr.P.C and takes cognizance of an offence under Section 190, Cr.P.C then it issues a process under Section 204, Cr.P.C to the accused for procuring attendance and to face the trial, if there are sufficient grounds for proceeding in the opinion of the Court. Section 204, Cr.P.C is regarding the issuance of process which is reproduced as under:-

"204. Issue of process. (1) If in the opinion of a [Court] taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which, according to the fourth column of the Second Schedule a summons should issue in the first instance, [it] shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, [it] may issue a warrant, or, if [it] thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or (if [it] has no jurisdiction [itself] some other Court having Jurisdiction.

(2) Nothing in this section shall be deemed to affect the provisions of Section 90.

(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the [Court] may dismiss the complaint".

As the process was not issued to the accused by the learned Additional Sessions Judge, therefore, Section 247, Cr.P.C is not applicable in the instant case. However, the words "if any" used by the legislature in the phrase "after considering the statement on oath (if any) of the complainant" allows the Court to dismiss a complaint under Section 203, Cr.P.C. at the preliminary stage even if the cursory statement of the complainant is not recorded; nevertheless, in doing so the Court shall briefly record the reasons for that. The conclusion of this question is that the Court can dismiss the Complaint for non-prosecution under Section 203, Cr.P.C as the Court was empowered to do that if complainant does not appear before the Court.

b. If the first complaint has been dismissed for non-prosecution whether a second complaint under Section 200, Cr.P.C can be filed before the same Court regarding the same occurrence or not?

1. In this regard, it is said that Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, and Section 403, Cr.P.C are relevant regarding the Ereinstitution of cases. For ready reference, relevant portion of Section 403, Cr.P.C and the Explanation thereof is reproduced as under:-

403. Persons once convicted or acquitted not be tried for the same offence. (1) A person who has once been tried by a Court of Competent Jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.

Explanation. The dismissal of a complaint, the stopping of proceedings under section 249 for the discharge of the accused] is not acquittal for the purposes of this section."

1. The subsection (1) of Section 403, Cr.P.C says that a trial of a person cannot be conducted again for the same offence if he is already tried by the court and convicted or acquitted of such offence. It is trite that the trial of an accused commences when the accused is summoned and charge is framed against him. The case of the Appellant/Complainant does not fall under Section 403, Cr.P.C as neither the accused was summoned, nor the charge was framed against the accused resultantly he was neither acquitted nor convicted.

2. Furthermore, in the explanation of Section 403, Cr.P.C, it is mentioned that the dismissal of a complaint, and the stopping of proceedings under Section 249, Cr.P.C. [or the discharge of the accused] is not acquittal for the purposes of this Section. As the dismissal of the complaint does not amount to acquittal of the accused, therefore, Section 403 Cr.P.C will not be applicable in the instant case. Reliance in this regard is placed on Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz Sharif and others, 2019 PCr.LJ 665 Lahore, Zahoor and another v. Said-ul-Abrar and another, 2003 SCMR 59 and Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 Supreme Court 687, Muhammad Akram v. Haji Mir Aziz Ahmed and 3 others, 2000 P Cr.LJ 489, Saeed Ahmed v. Abdul Shakoor and another, 2005 PCr.LJ 1631 and Abdul Majid v. MD. Mansur Ali and 14 others, 1969 PCr.LJ 692. The relevant portion of the judgment passed in the case of Muhammad Jawad Hamid and another v. Mian Muhammad Nawaz Sharif and others (supra) is reproduced hereunder:

"----S.203---Private complaint, dismissal of---Order passed under S. 203, Cr.P.C---Scope Such order could not be held as autrefois or statutory acquittal---At the most, dismissal of the complaint as a whole or non-summoning of some of the persons complained against may have the effect of discharge---Complainant, at his own option, may file a subsequent fresh complaint on same allegations by adding some new facts/grounds and mentioning any new material evidence which earlier were not in his knowledge or the complainant was not in a position to bring them on record. Mst. Robina Rashid v. Farrukh Amin PLD 2011 FSC 121, Ibrar Hussain Shah v. Syed Waris Shah 2015 PCr.LJ 784 and Tariq Javed v. Hom Purkash 2018 PCr.LJ 771 ref."

The relevant portion of the judgment passed in the case of Zahoor and another v. Said-Ul-Abrar and another (supra) is reproduced hereunder:-

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

S.203---Dismissal of complaint---Entertainment of second complaint not barred---Dismissal of a complaint under S.203, Cr.P.C. does not bar the entertainment of a second complaint on the same facts in exceptional circumstances, eg, where the previous order was passed on an incomplete record, or on a misunderstanding of the nature of the complaint, or it being manifestly absurd, unjust or foolish or where new facts had been adduced which could not, with reasonable diligence, have been brought on the record in the previous proceedings---Where however, a decision has been given against the complainant upon a full consideration of his case, giving another opportunity to him or any other person for having his complaint enquired into, cannot be in the interest of justice."

The relevant portion of the judgment passed in the case of Azmat Bibi and another v. Asifa Riaz and 3 others (supra) is reproduced hereunder:-

2025 P Cr. L J 1125

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

Shakeel Ahmed Qureshi---Appellant

Versus

The State and others---Respondents

Criminal Appeal No. 141 and Criminal Revision No. 68 of 2015, decided on 29th November, 2018.\

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

----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for committing murder of the husband of complainant during robbery---Appellant was duly identified by the complainant as he was previous driver of the complainant and his services were rehired two days prior to the alleged occurrence and he was given servant quarter to live in complainant's house ---On fateful day, when the deceased, aged about 84 years, opened the kitchen door at 5.30 am, the appellant and co-accused while armed with pistol entered into the bedroom of the complainant and her husband and landed pistol blows on the head of the deceased in the presence of the complainant and when the deceased got injured, he fell down on the floor---Appellant also landed pistol blows upon the complainant and thereafter tied up both the complainant and her deceased husband with nylon ropes and put pieces of cloth in their mouth, which were taken into possession by the Investigating Officer on the day of occurrence---Complainant also stated that the appellant along with his accomplice forcefully removed 12 gold bangles and two cuffs they also took out one lac rupees from bedroom cupboard along with four prize bonds each worth of Rs. 25,000/- and one hundred British pounds and fled away---Details of injuries given by Medico-Legal Officer fully corroborated the testimony of eye-witness/complainant---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of any doubt---However, due to mitigating circumstances, sentence under S.411, P.P.C was set-aside, whereas the sentence under S.392 P.P.C was enhanced to 10 years and the sentence of life imprisonment under S.302(b) P.P.C was maintained---Criminal appeal was partly allowed.

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

----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Recovery of robbed property---Reliance---Accused were charged for committing murder of the husband of complainant during robbery---During the investigation, father of the appellant made appearance and produced one cuff, two bangles, two prize bonds worth Rs. 25,000/- each, which were taken into possession by the Investigating Officer through recovery memo---Said articles were identified by the complainant in the police station through identification memo and in that regard her statement was also recorded by the Investigating Officer---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of any doubt---However, due to mitigating circumstances, sentence under S.411, P.P.C was set-aside, whereas the sentence under S.392 P.P.C was enhanced to 10 years and sentence of life imprisonment under S.302(b) P.P.C was maintained---Criminal appeal was partly allowed.

(c) Criminal trial---

----Conviction---Scope---To establish an accusation, it is not the quantity but quality of the evidence, which gets preference for the purpose of conviction.

Amrood Khan v. The State 2002 SCMR 1568; Rahim Shah v. The State and another 2004 PCr.LJ 1129; Arab Gul v. Mir Shah Baz and another 2004 PCr.LJ 1138 and Masood Khan v. The State 2018 MLD 1672 rel.

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

----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Defence plea of not being present of place of occurrence not proved---Scope---Accused were charged for committing murder of the husband of complainant during robbery---Allegedly, appellant was not present at the scene of occurrence and he was substituted in the case---In his statement recorded under S.342, Cr.P.C, the appellant denied his presence in the servant quarter of the complainant whereas the appellant was duly identified by the complainant and his credentials were fully known to her, therefore, question of substitution of the appellant did not arise as the appellant had failed to prove the same---Substitution of an accused is a rare phenomenon and one who alleges substitution must lay down the foundation for it---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of any doubt---However, due to mitigating circumstances, sentence under S.411 P.P.C was set-aside, whereas the sentence under S.392, P.P.C, was enhanced to 10 years and the sentence of life imprisonment under S.302(b), P.P.C was maintained---Criminal appeal was partly allowed.

Muhammad Tariq and others v. The State 2000 PCr.LJ 47 rel.

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

----Ss. 302(b), 392, 354, 411 & 34---Qatl-i-amd, robbery, assault or criminal force to a woman with the intent to outrage her modesty, dishonestly receiving stolen property, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Accused were charged for committing murder of the husband of complainant during robbery---In the present case, the stolen articles were produced by father of the appellant---Conviction and sentence awarded to the appellant under S.411, P.P.C could not be maintained as S.411 P.P.C required that a person who retained any stolen property should be charged with the said offence, whereas in this case, the stolen articles were produced by father of the appellant, and no such fact had been proved on record that the said articles were in possession of the appellant---Therefore, conviction and sentence under S.411, P.P.C awarded to the appellant was against the law---Moreover, non-production of one of the relatives of complainant as a witness, who was telephonically informed by the complainant about the alleged occurrence at the first instance, constituted a mitigating circumstance---On the other hand, the requirement of S.392, P.P.C. had to be seen in the light of the statement recorded by complainant, who was put under fear of instant death and she was also injured and wrongly detained, therefore, all the ingredients of robbery mentioned in S.392 P.P.C were present in the case---Hence, sentence of three years imprisonment awarded to the appellant under S.392 P.P.C was on the lesser side, therefore the same was enhanced to 10 years---Sentence of life imprisonment under S.302(b), P.P.C was maintained---Criminal appeal was partly allowed.

Zia-ur-Rehman for Appellant (in Criminal Appeal No. 141 of 2015).

Sadaqat Ali Jahangir, State Counsel for the Respondent No. 1. (in Criminal Appeal No. 141 of 2015).

Ch. Abdul Rehman Hur Bajwa for Respondent No. 2 (in Criminal Appeal No. 141 of 2015).

Ch. Abdul Rehman Hur Bajwa for Petitioner (in Criminal Revision No. 68 of 2015).

Zia-ur-Rehman for Respondent No. 1 (in Criminal Revision No. 68 of 2015).

Sadaqat Ali Jahangir, State Counsel for the Respondent No. 2 (in Criminal Revision No. 68 of 2015).

Date of hearing: 5th November, 2018.

Judgment

Mohsin Akhtar Kayani, J.---Through this single judgment, we intend to decided above titled criminal appeal and criminal revision as the same have been filed against the same judgment.

1. Through appeal, the appellant has assailed the judgment dated 30.06.2015, passed by learned Additional Sessions Judge (VIII) West-Islamabad, whereby the appellant was convicted in case FIR No. 173, dated 14.04.2013, under sections 302, 392, 354, 411, 34, P.P.C., P.S Kohsar, Islamabad and sentenced as under:

(a) Under Section 302(b)/34 of life imprisonment with fine of Rs. 1,00,000/-, and in default of payment of the same, the appellant to further undergo three months S.I;

(b) Under section 392/34 P.P.C. for three years R.I with fine of Rs.10,000/- and in default of payment of the same, the appellant to further undergo one month S.I; and, (c) Snder Section 411/34 P.P.C. for two years imprisonment with fine of Rs. 10,000/-and in default of payment of the same, the appellant to further undergo one month S.I.

All the sentences shall run concurrently. The amount of fine of Rs.100,000/- under section 302 (b) P.P.C., if recovered shall be paid to the legal heirs of the deceased as per section 544 Cr.P.C. Benefit of section 382-B, Cr.P.C is also extended to the appellant.

1. Through the criminal revision, the petitioner/complainant has prayed for enhancement of the sentence awarded to the appellant through impugned judgment dated 30.06.2015.

2. Brief facts are that case FIR No.173, dated 14.04.2013, under sections 302, 392, 354, 411, 34, P.P.C., P.S Kohsar, Islamabad/ Exh.P.B was registered against the appellant and an unknown person on the complaint/Exh.P.A of complainant/Roshan Ara Begum/P.W.3, wherein she alleged that she was residing with her husband at House No.28-A, Street No. 18, Sector F-7/2, Islamabad and two days ago they hired Shakeel Ahmed Qureshi son of Muhammad Farooq Qureshi, resident of Sir Bagla, Post Office Hattian Bala Azad District Muzaffrabad as driver, who had already worked with them as driver and he was living in servant quarter, whereas on 14.04.2013, she and her husband Anwar ud Din were sleeping in their bedroom and at about 5:30 am, her husband opened the kitchen door, whereafter their driver Shakeel Ahmed Qureshi along with a young man entered into their bedroom. Shakeel Ahmed Qureshi, who was holding a pestle (Langri Danda) after entering into the bedroom along with the co-accused caught hold her husband and started hitting him and when she reached near the accused, they also started hitting her. Shakeel Ahmed Qureshi landed pestle blows on the head of her husband, who got seriously injured and fell down on floor on getting unconscious, whereafter both the accused tied up the complainant and her husband with rope and also put cloth in their mouth. At the time of occurrence, the complainant was wearing 12 gold bangles and two cuffs, which they forcefully removed and they also took cash amounting to Rs.1,00,000/-, four prize bonds each worth of Rs.25,000/-, one hundred British pounds from Almirah of bedroom and fled away. After hectic efforts, she untied herself and telephonically informed her relative Iftikhar, who came there and when they checked her husband, he had died.

3. After registration of the FIR and investigation, the challan was sent up before the Court for trial, whereafter the learned Trial Court convicted and sentenced the appellant through impugned judgment dated 30.06.2015.

4. Learned counsel for the appellant contended that learned Trial Court has not appreciated the evidence in its true perspective; that findings of learned Trial Court are based on surmises and conjectures; that the prosecution miserably failed to prove the case against the appellant but despite that the appellant has been convicted and sentenced; that impugned judgment, conviction and sentence are against the law and facts of the case.

5. Conversely, learned counsel for complainant and learned State counsel contended that the prosecution proved its case beyond any shadow of doubt; that impugned judgment to the extent of quantum of sentence is result of mis-reading and non-reading of evidence; that learned Trial Court must have awarded capital punishment to the appellant on the basis of available cogent evidence.

6. We have heard the arguments and gone through the record.

7. The entire prosecution case is based upon statement of complainant/Mst. Roshan Ara Begum/P. W.3, who lodged the complaint Exh.P.A., which is reproduced as under:-

8. The above referred complaint was converted into FIR No.173, dated 14.04.2013, under sections 302, 392, 354, 34, P.P.C., P.S Kohsar, Islamabad/Exh.P.B.

9. Dr. Muhammad Farrukh Kamal, Deputy Director/Medicolegal Officer, PIMS, Islamabad appeared as P.W.4, who conducted post mortem of the deceased. Anwar ud Din. Examination-in-chief of P.W.4 is reproduced as under:-

"That on 14.04.2013 at about 12:15 p.m I conducted the post mortem of Anwar ud Din son of Ikhlas ud Din aged 84 years male brought by Naveed Ahmed A.S.I. and Iftikhar Ahmed S.1. of Police Station Kohsar, Islamabad and was identified by Mian Shahid Ahmed son of Mian Faqeer Ahmed and Mian Javed Ahmed son of Mian Faqeer Ahmed.

External Examination.

An old man height 5 feet 11 inches wearing gray color clothes eye and mouth closed. Hair and moustache white not shaved.

Injuries.

i. Lacerated wound 11x2 cm, parieto occipital region, bone deep, on scalp.

ii. Bruised lower lip 6x2 cm.

iii. Bruised upper lip 3x2 cm.

iv. Bruised chin 4x3 cm.

v. Bruised of nose of right side 1x1 cm.

Rigor mortis and levedity in initial stages.

Internal Examination.

Scalp ruptured and damaged. Brain contused. Lips bruised, both lungs were congested. Stomach empty, yellow green contents present in small intestines, fecal matter present in large intestine. All other organs were healthy and intact. Specimens No.1 liver, spleen, kidney, No.2 stomach, small intestine with contents were sent to chemical examiner and No.3 heard, No.4 lungs were sent to pathologist.

Opinion.

In my opinion final opinion would be established after the chemical and pathological examination reports. However, deceased sustained head injury which caused rupture and damages of scalp, contusion of brain, smothering which caused death cannot be ruled out. All injuries were ante-mortem in naure.

Time between injury and death.

1-2 minute or few minutes (5-10 approximately)

Time between death and postmortem.

6-8 hours (approximately)

Postmortem report Exh.PE along with two diagrams is in my handwriting and bears my signatures. Postmortem application as Exh.P.F and inquest report Exh.P.G bears my signature.

1. Dr. Shazia Suleman, C.M.O PIMS Hospital, Islamabad/P.W13 examined injured complainant Mst. Roshan Ara. Her examination-in-chief is reproduced as under:-

"On 14.04.2013 I was posted as C.M.O PIMS Islamabad on that day, I examined Mst. Roshan Ara brought by lady constable. On examination I found following injuries on her body. Injuries.

i Swelling with Bluish discoloration on both eyes with sub-conjuntival hemorrhages, bilaterally. The patient complained that she was tried to be strangulated.

ii. Loosening of teeth.

iii. Bruises with superficial laceration on both forearms.

iv. Chest pain.

I prepared her medical sheet Exh.P.BB which is in my handwriting and bears my seal and signature and I referred the patient to IMLO and OMFS.

1. After registration of the FIR, P.W.12 Iftikhar Ahmad/I.O. prepared inquest report/Exh.P.G, filed application for post mortem/Exh.P.F. Anwar ur Din deceased and also prepared injury sheet of the complainant as Exh.P.Y and sent her to PIMS Hospital. The crime scene was inspected by the I.O, who prepared rough site plan/Exh.P.2, collected blood from the carpet vide memo Exh.P.M and collected incriminating articles from the spot i.e. Danda/P.16, copy of the CNIC of appellant/P.17, eight pieces of Nylon rope/P.18 to P.23, Phuldar Chadar/P.24 vide recovery memo Exh.P.N and recorded statement of P. Ws under section 161, Cr.P.C. The dead body was identified by Mian Shahid and Mian Javed/relatives of the deceased through memo of identification Exh.P.K. The last worn clothes of the deceased i.e. Qameez/P.25 and Shalwar/P.26 were taken into possession vide recovery memo Exh.P.O. The post mortem report/Exh.P.E was collected by the I.O from the hospital, where after the I.O got issued proclamation of appellant from the Court and on 21.06.2013, he took over ten photographs/snaps/P.1 to P.10 vide recovery memo Exh.P.C and arrested the appellant on 04.07.2013, whereas during the course of investigation, father of the appellant appeared in the police station on 13.07.2013 and handed over the shopping bag of white colour containing one gold cuff, two bangles and two prize bonds of Rs.25,000/- each, which were taken into possession vide recovery memo Exh.P.S. The gold cuff was recovered as P.11, bangles as P.12 and P.13, and prize bonds as P.14 and P.15, which were handed over to the Moherar Malkhana for safe custody. He further stated that on 14.07.2013 complainant/Roshan Ara/ P.W.3 appeared in police station and duly identified Kara/P.11, bangles/P.12 and 13 and prize bonds/P.14 and P.15 snatched from her by the appellant and co-accused since P.O..

2. The star witness of the case is complainant/Roshan Ara, who narrated the entire story while appearing as P.W.3 before the Court, wherein she stated that she along with her husband were residing at house No.28-A, Street No.18, F-7/2, Islamabad and on 14.04.2013, in the early morning hours at about 5:30 am, when her husband opened kitchen door, the appellant (duly identified in the Court by her) along with another unknown person entered into their bedroom. She also stated that they hired the appellant as driver and he was given accommodation in servant quarter and on the day of occurrence, when the appellant entered in their bedroom, he was holding a pestle in his hand and he landed pestle blows on the head of her husband, who got injured and fell down on the floor. She further stated that when she reached near her husband, the appellant also started hitting her with the same pestle and the appellant and his accomplice tied up her and her husband with a rope and put a piece of cloth in their mouth and forcefully removed all the golden articles i.e. 12 gold bangles, two gold cuffs and cash amount of Rs.1,00,000/- from bedroom cupboard. She, further stated that the appellant also took four prize bonds each worth of Rs.25,000/- and one thousand British pounds (in complaint one hundred pound is mentioned), where-after the appellant and his co-accused fled away from the scene and after hectic efforts, she untied herself and informed her relative Iftikhar on phone about the alleged occurrence and when he checked her husband, who by that time had been succumbed to injuries. She further stated that Iftikhar informed the police, whereafter the police officials reached at the spot after some time and the I.O. recorded her statement Exh.P.A and the dead body of the deceased was taken to the hospital. PW.3 was called in police station on 14.07.2013, where she identified two gold bangles, one gold cuff, and two prize bonds, which were snatched by the appellant on the day of occurrence. She further stated that the I.O prepared identification memo Exh.PD regarding the articles, which she identified.

3. During the course of cross-examination of P.W.3 Mst. Roshan Ara Begum/complainant, P.W.4 Dr. Muhammad Farrukh Kamal/MLO, and P.W.13 Dr. Shazia Suleman/C.M.O., they have admitted the following facts:

i. Appellant Shakeel Ahmed Qureshi was working as driver with the complainant.

ii. Two days prior to the occurrence i.e. on 12.04.2013, the appellant was hired again for the second time on his repeated calls for hiring him as Driver.

iii. Copy of the ID card of the appellant was given to the police by the complainant.

iv. At the time of occurrence, the deceased was 84/85 years old and had difficulty in hearing, and the complainant is about 69 years old as of now.

v. Deceased's sons Ejaz Anwar, Ayaz Anwar and daughter Saira are still in Lahore, who were born from Mst. Saima i.e. first wife of the deceased.

vi. Complainant/P.W.3 is second wife of the deceased and the house was in the name of the deceased.

vii. The deceased was retired Major from Pakistan Army.

viii. One Iftikhar is brother in law of the complainant.

ix. On the day of occurrence, the deceased opened kitchen door at 5:30 am and the complainant/P.W.3 offered her Fajar prayer at 5:00 a.m.

x. The complainant did not know as to how unknown persons made entry into the house.

xi. House of Iftikhar is at a distance of 10 minutes from the place of occurrence and the complainant called him on telephone after one hour of the occurrence.

xii. The police reached at the place of occurrence at about 8:30 a.m.

xiii. The complainant never put off jewelry from her hands till time of the occurrence.

xiv. A security guard was appointed in the street, who was on duty at the time of occurrence, however, he was not associated by the I.O. in the investigation.

xv. The complainant acknowledged that upper portion of the house/alleged place of occurrence is rented and a lady tenant was living alone in upper portion, who was working in NGO.

xvi. P.W.3 reached at the police station at 10:15 a.m.

xvii. The complainant saw one gold cuff and two bangles in the police station and she did not inquire about remaining 10 bangles, one hundred British pounds and two prize bonds.

xviii. All the 12 bangles were of the same design.

xix. Learned defence counsel asked the complainant to wear the bangles, which she wore and the same were as per size of her hand and easily slipped into her wrist and this fact was duly noted by learned Trial Court.

xx. Co-accused was not known to the complainant.

xxi. Dr. Muhammad Farrukh Kamal/P.W.4 conducted post mortem and referred five injuries upon the dead body of the deceased and declared that scalp was ruptured and damaged and brain was contused.

xxii. Smothering cannot be ruled out as cause of death.

xiii. Dr. Shazia Suleman/P.W.13 conducted examination of the complainant and three injuries were found on her body while observing swelling with bluish discoloration on both eyes with sub-conjunctival hemorrhages, bilaterally, loosening of teeth, bruises with superficial laceration on both forearms.

xxiv. No mark of strangulation or ropes ligature on the body of the complainant was found by P.W.13.

1. From the above referred evidence brought by the prosecution on record, we are of the view that the appellant was duly identified by the complainant/Roshan Ara Begum wife of the deceased as the appellant was previous driver of the complainant and his services were rehired two days prior to the alleged occurrence and he was given servant quarter to live in house No.28-A, street No.18, F-7/2, Islamabad and on 14.04.2013, when the deceased/husband of the complainant, aged about 84 years, opened the kitchen door at 5:30 am, where-after the appellant and co-accused while armed with Pestle/P.16 entered into the bedroom of the complainant and her husband and landed pestle blows on the head of the deceased in presence of the complainant and when the deceased got injured, he fell down on floor. The appellant also landed pestle blows upon the complainant and thereafter tied up both the complainant and her deceased husband with Nylon ropes/P.18 to P.23 and put pieces of cloth Phuldar Chadar/P.24 in their mouth, which were taken into possession by the I.O on the day of occurrence vide recovery memo Exh.P.N. Complainant/P.W.3 also stated that the appellant along with his accomplice forcefully removed 12 gold bangles and two cuffs as well as they also took out one lac rupees from bedroom cupboard along with four prize bonds each worth of Rs.25,000/- and one hundred British pounds and fled away. Thereafter the complainant untied herself with hectic efforts and called Iftikhar, her brother-in-law, who came at the place of occurrence and called the police, where-after FIR/Exh.P.B was registered on the complaint/Exh.P.A. The I.O took into possession the ropes, the cloth used to mum the complainant and her deceased husband as well as Pestle/P.16 used in the crime. The deceased ex-Major was done to death by the appellant through pestle blows as narrated by the complainant/P.W.3, whereas lacerated wound of 11x2 cm, parieto occipital region, bone deepwas visible on scalp and rest of the injuries were bruises. The said details of injuries given by P.W.4 fully corroborate the testimony of eye-witness/complainant. In opinion of the doctor/P.W.4, scalp was ruptured and damaged, whereas brain was contused and the doctor did not rule out cause of death due to smothering on the basis of Chadar/P.24 used by the appellant to mum the complainant and deceased and as a result of the same, the deceased died in the house. The appellant was arrested by the I.O/P.W.12/Iftikhar Ahmed Inspector on 04.07.2013, when his pre-arrest bail application was dismissed.

2. During the investigation, father of the appellant put appearance on 13.07.2013 and produced one Cuff/P.11, two bangles P.12 and P.13, two prize bonds/P.14 and P.15 of worth Rs.25,000/- each, which were taken into possession by the I.O. through recovery memo Exh.P.S and the same were identified by the complainant in the police station on 14.07.2013 through identification memo Exh.P.I and in this regard her statement was also recorded by the I.O.

3. The appellant while recording his statement under section 342, Cr.P.C denied the occurrence as narrated and did not explain his perspective except that he gave copy of his ID card to the complainant being driver while answering question No.21.

4. Keeping in view the above background and the defence taken by the appellant, we are of the view that the appellant was known to the complainant/P.W.3, who is injured prosecution witness (wife of deceased) and she was fully aware of the particulars of the appellant on the basis of his job description as the appellant was residing in the servant quarter of the same house and was fully aware that the deceased Anwar ud Din, aged 84 years, is living with the complainant in this house, whereas the real sons and daughter of the deceased were living in Lahore as the complainant was second wife of the deceased. The medical evidence fully corroborates testimony of complainant/P. W.3 and learned counsel for the appellant has failed to point out a single dent in the prosecution evidence, which is consistent qua the identification, nature of the injuries, locale of the injuries and details of the gold articles as well as prize bonds snatched during the course of occurrence by the appellant and co-accused. Although, there is no formal discovery as well as recovery from the appellant in this case and surprisingly, father of the appellant produced one Kara/P.11, two bangles/P.12 and P.13 and two prize bonds/P.14 and P.15 in the police station, therefore, question relating to recovery is not material in this case rather it is the consistency of version of the complainant, which could not be shattered by single doubt during the course of cross-examination and statement of 1.O/P.W.12 is fully corroborated with the version of the complainant. The alleged witness Iftikhar, who was called by the complainant at the crime scene, did not appear before the Court to further corroborate testimony of the complainant but in our humble view, to establish accusation, it is not the quantity but quality of the evidence, which gets preference for the purpose of conviction. Reliance is placed upon 2002 SCMR 1568 (Amrood Khan v.. The State), 2004 PCr.LJ 1129 [Peshawar] (Rahim Shah v.. The State and another), 2004 PCr.LJ 1138 [Peshawar] (Arab Gul v.. Mir Shah Baz and another), and 2018 MLD 1672 [Peshawar] (D.I. Khan Bench)) (Masood Khan v.. The State).

2025 P Cr. L J 1230

[Islamabad]

Before Arbab Muhammad Tahir and Muhammad Azam Khan, JJ

Muhammad Irfan Shah---Appellant

Versus

The State---Respondent

Jail Appeal No. 460 and Murder Reference No. 27 of 2023, decided on 14th April, 2025.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that the son of complainant/deceased told his father that the appellant had fired direct shot at him after which appellant fled away---Eye-witness raised hue and cry---Complainant immediately shifted his injured son to the hospital where they were told that it was a police case and were asked to take him to other hospital---Complainant took his son to the other hospital where he was treated but his son succumbed to injuries almost after 25-minutes---Statement made by the deceased before his father was a dying declaration, that carried great weightage in a criminal case of homicide as it had been established beyond any doubt that the deceased made that declaration immediately after the incident, ruling out any possibility of influence or other factors---Circumstances established that the prosecution had proved its case beyond any shadow of doubt against the appellant---Appeal against conviction was dismissed accordingly.

Muhammad Saeed and another v. The State and another 2024 SCMR 1421 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 son of complainant by firing---Record showed that it was a daylight occurrence---Eye-witness of the occurrence was nephew of the complainant but mere relationship of the witness with the complainant or deceased was not sufficient to discard the credibility of his statement---In his testimony, eye-witness gave all necessary details of occurrence qua the date, time, place, manner of occurrence, kind of weapon used and the locale of injury to the deceased---Circumstances established that the prosecution had proved its case beyond any shadow of doubt against the appellant---Appeal against conviction was dismissed accordingly.

Ijaz Ahmad v. The State 2009 SCMR 99; Sheraz Tufail v. The State, 2007 SCMR 518; Khair Muhammad and another v. State 2007 SCMR 158; Amal Sherin and another v. State through A.G. N.W.F.P., PLD 2004 SC 371; Dosa and others v. The State 2002 SCMR 1578; Mulla Riaz Ahmad v. The State 2002 SCMR 626; Feroze Khan v. The State 2002 SCMR 99; Farmanullah v. Qadeem Khan and another 2001 SCMR 1473; Muhammad Amin v. The State 2000 SCMR 1784; Saeed Akhtar and others v. The State 2000 SCMR 383; Mir Hassan and others v. State and others 1999 SCMR 1418; Sharafat Ali v. The State 1999 SCMR 329; Sardar Khan and others v. State 1998 SCMR 1823; Wahid Bukhsh and others v. The State 1997 SCMR 1424; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639; State of Rajasthan v. Hanaman AIR 2001 SC 282 and State of Punjab v. Wassail Singh and others AIR 1981 SC 697.rel.

(c) Criminal trial---

----Motive---Scope---In the absence of motive, the death penalty cannot be withheld solely because the prosecution failed to allege or establish a motive.

Muhammad Latif v. The State PLD 2008 SC 503 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and blood stained earth---Reliance---Accused was charged for committing murder of the son of complainant by firing---Record showed that a 30-bore pistol was recovered at the pointation of appellant which matched with the crime empty collected from the place of occurrence as per report of Forensic Science Laboratory---Blood stained earth collected by Investigating Officer was verified as human blood through report of Forensic Science Laboratory---Circumstances established that the prosecution had proved its case beyond any shadow of doubt against the appellant---Appeal against conviction was dismissed accordingly.

Qausain Faisal Mufti and Qaiser Kamal for Appellant.

Rana Hassan Abbas, ADPP and Mehboob, S.I P.S Noon, Islamabad for the State.

Date of hearing: 11th March, 2025.

Judgment

Muhammad Azam Khan, J.---The Appellant [Irfan Shah] has been tried by the learned Trial Court in case FIR No. 54, dated 15.03.2020, under Section 302 P.P.C, P.S. Noon, Islamabad and was convicted and sentenced vide Judgment dated 07.12.2023 as under: -

Irfan Shah (Appellant)

Under Section 302 (b) P.P.C Sentenced to death as Tazir for committing Qatl-e-Amad of Umair Sarwar (deceased) with compensation of Rs.500,000/- payable to legal heirs of deceased under Section 544-A Cr.P.C (recoverable as arrears of land revenue) and in default whereof to further undergo simple imprisonment for six months.

1. The Appellant has filed this Criminal Jail Appeal against his conviction and the learned Trial Court has sent Murder Reference for confirmation of the death sentence of the Appellant or otherwise, which are being decided through this single judgment.

2. Heard, record perused.

3. Umair Sarwar sustained a firearm injury at the hands of the Appellant during the occurrence took place on 15.03.2020 at about 04:30 p.m. Whereafter FIR was lodged on the same day at 07:00 p.m on a written Complaint drafted by Tariq Mahmood ASI (PW-6) on the oral statement of Ghulam Sarwar, father of the deceased, which is reproduced as under:-

4. Umair Sarwar (deceased/the then injured) died on 15.03.2020 at 06:00 p.m. i.e. on the same day at the hospital.

5. Prosecution produced thirteen (13) witnesses. Muhammad Usman (PW-12) who is the eye-witness of the occurrence, categorically deposed that he is running a barber shop at Jhangi Syyadan, Muhammadi Town, Islamabad; that on 15.03.2020 he offered prayer at Ali Al-Murtaza Mosque, Muhammadi Town and came outside of Mosque at about 04:20 p.m, where some children were flying kites in the fields of wheat crop. He also stood there. The deceased Umair Sarwar was also present there. Meanwhile, the Appellant, who was a resident of Raza Town, came there and abused Umair Sarwar (deceased) and asked him to call his father and express in front of Irfan Shah that he was a drug dealer. Umair Sarwar (deceased) stopped him not to abuse, however, the Appellant took out his 30 bore Pistol and fired a direct shot at Umair Sarwar (deceased). Muhammad Usman (PW-12) proceeded towards the Appellant, but he made 4/5 aerial fires due to which he became scared and the Appellant fled away from the place of occurrence. Umair Sarwar (deceased) was lying on the ground and blood was oozing from his chest and back side. He then took him to the shop of his father which was nearby and his father took him to hospital but Umair Sarwar (deceased) succumbed to the injuries in the hospital.

6. Ghulam Sarwar (PW-9), who is the father of the deceased Umair Sarwar, stated that on 15.03.2020 he was present along with his son Umair Sarwar at his shop Al-Ahmed Electric Store. His son told him that he was going to offer "Asar" prayer, at about 04:30 p.m, his son returned to his shop, while he was putting his hand on his chest. He was accompanied by his nephew namely Muhammad Usman, who was holding his son Umair Sarwar, who was in injured condition. His son, Umair Sarwar, told him that the Appellant had fired a direct shot at him, after which he fled upon Muhammad Usman's raising hue and cry. He immediately shifted his injured son to Rehman Medical Center in a vehicle, where they were told that it was a Police case and were asked to take him to PIMS hospital. He then took his son to PIMS hospital where he was treated but his son succumbed to injury almost after 25 minutes. The motive behind the occurrence was that he had forbidden the Appellant not to sell narcotics in the vicinity, upon which the Appellant exchanged hot words with his son and had also threatened him that he would teach him a lesson as his father had defamed him in the area. The statement made by the deceased namely Umair Sarwar before his father is a dying declaration that carries a great weightage in a criminal case of homicide as It has been established beyond any doubt that the deceased made this declaration immediately after the incident, ruling out any possibility of influence or other factors. Reliance is placed on the judgment of the august Supreme Court passed in the case of "Muhammad Saeed and another v. The State and another" reported as 2024 SCMR 1421, wherein the Hon'ble Court has discussed as under: -

"11. Under Article 46 of the Qanun-e-Shahadat Order, 1984 the sanctity of a dying declaration has to be evaluated with great care and caution and the evidence consisting of dying declaration has to be appreciated with due diligence. A dying declaration is a question of fact which has to be determined on the facts of each case. To find out truth or falsity of a dying declaration, a case is generally to be considered in all its physical environment and circumstances. A dying declaration can be made before a private person but it should be free from any influence and the person before whom it is made has to be examined. It is necessary to ascertain that the dying declaration was made honestly, its maker was in a fit state of mind to make the statement, its maker was free from outside influence, its maker was fearing death and had made truthful statement."

1. Both the above-mentioned witnesses (Muhammad Usman and Ghulam Sarwar) are the eye-witness of the occurrence and the witness of the last words of the deceased. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They were corroborated with each other on all material aspects of the case. Their evidence is straightforward, trustworthy, and confidence-inspiring and cannot be discarded merely on the probabilities.

2. The discrepancies in the statements of the PWs pointed out by the learned counsel for the Appellant are minor and general, and occurred in every case when witnesses (who are human beings) are cross-examined after a long time of the occurrence as in the present case, the occurrence took place on 15.03.2020, while evidence was recorded in the years 2022 and 2023 and are not fatal to the prosecution case.

3. Muhammad Usman (PW-12), who is the eye-witness of the occurrence, has fully implicated the Appellant which has a great weight and sanctity under the law. Similarly, the statement of the father of the deceased is also very much important as his deceased son told the whole facts, while in injured condition. This fact is proved by the Medical Report that when the deceased came to the hospital he was in a gasping position. Meaning thereby that he was alive till reaching hospital and before that at the initial stage of receiving a firearm shot, he told the real facts to his father. The learned counsel for the Appellant was unable to identify any illegality or flaw in this regard, which has been rightly relied upon by the learned Trial Court.

4. It was a daylight occurrence. Muhammad Usman is the nephew of the Complainant, but mere relationship of the witness with the Complainant or deceased is not sufficient to discard the creditability of his statement. In his testimony, said witness gave all necessary details of occurrence qua the date, time, place, manner of occurrence, kind of weapon used, and the locale of injury to the deceased. In this regard, reliance is placed on the Judgment of the apex Court in the case of "Ijaz Ahmad v. The State" reported as 2009 SCMR 99, relevant para of which is reproduced hereunder: -

"9. As regards the contention that both the eye-witnesses were related and thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him."

Similarly, reliance is placed on the same point on the Judgments of the superior Courts i.e. (i) Sheraz Tufail v. The State, 2007 SCMR 518, (ii) Khair Muhammad and another v. State, 2007 SCMR 158, (iii) Amal Sherin and another v. State through A.G. N.W.F.P., PLD 2004 SC 371, (iv) Dosa and others v. The State, 2002 SCMR 1578, (v) Mulla Riaz Ahmad v. The State, 2002 SCMR 626, (vi) Feroze Khan v. The State, 2002 SCMR 99, (vii) Farmanullah v. Qadeem Khan and another, 2001 SCMR 1473, (viii) Muhammad Amin v. The State, 2000 SCMR 1784, (ix) Saeed Akhtar and others v. The State, 2000 SCMR 383, (x) Mir Hassan and others v. State and others, 1999 SCMR 1418, (xi) Sharafat Ali v. The State, 1999 SCMR 329, (xii) Sardar Khan and others v. State, 1998 SCMR 1823, (xiii) Wahid Bukhsh and others v. The State, 1997 SCMR 1424, (xiv) Muhammad Arshad alias Achhi v. The State, 1995 SCMR 1639, (xv) State of Rajasthan v. Hanaman, AIR 2001 SC 282, and (xvi) State of Punjab v. Wassail Singh and others, AIR 1981 SC 697.

1. Postmortem Report shows that doctor Muhammad Farrukh Kamal, Joint Executive Director/Incharge Medicolegal Department, PIMS, Islamabad (PW-7), during postmortem examination observed one firearm entry wound and exit wound on the dead body of deceased Umair Sarwar. In his opinion, deceased died due to firearm injury which caused rupture and damage of the right lung (haemothorax 2-3 litters of blood drained) and liver caused death, which were antemortem in nature and were sufficient to cause death in the ordinary course of nature. The said witness identified the emergency slip of Umair Sarwar (deceased) dated 15.03.2020 (Ex.PR), which was issued with the signatures of Dr. Usama who has left the job. As per the emergency slip, Umair Sarwar (deceased) was brought to hospital at 05:39 p.m on 15.03.2020, in gasping condition with firearm injury, BP less and pulse less and Umair Sarwar was declared dead at 06:00 p.m. The Death Certificate (Ex.PS) was also prepared and signed by Dr. Usama which was verified by the said PW-7, Dr. Farrukh Kamal.

2. The motive behind the occurrence was that the Complainant namely Ghulam Sarwar (PW-9) forbade the Appellant (Irfan Shah) not to sell narcotics in the vicinity due to which the Appellant felt humiliated and fired one shot effectively on the son of the Complainant due to which he died in the hospital. Even otherwise, in the absence of motive, the death penalty cannot be withheld solely because the prosecution fails to allege or establish a motive. Reliance is placed on the ruling of the apex Court in the case of "Muhammad Latif v. The State" reported as PLD 2008 SC 503 wherein it has been affirmed that:-

"Therefore, the old rule of failure of prosecution to prove the motive, took the change through the judgments of the superior courts with the passage of time. Now-a-days, lack, absence, inadequacy, weakness, or the motive, if any, set up by the prosecution and failure to prove it or the motive is shrouded in mystery, are not the grounds to withhold penalty of death or to order the sentence of life imprisonment, if the prosecution has succeeded to prove its case beyond any doubt or suspicion with regard to the commission of the offence."

2025 P Cr. L J 1267

[Islamabad]

Before Muhammad Asif, J

Col. (r) Khalil-ur-rehman---Petitioner

Versus

Judicial Magistrate Sec-30 and 4 others---Respondents

Writ Petition No. 1346 of 2025, decided on 28th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 173---Constitution of Pakistan, Art. 199---Constitutional petition---Police Rules, 1934, R. 24.7---Penal Code (XLV of 1860), S. 506---Criminal intimidation---Report of Police Officer---Cancellation of FIR---Due process---Scope---Petitioner assailed order passed by Judicial Magistrate whereby he had cancelled the FIR on the recommendation of the police---Validity---In the present case, the alleged occurrence took place on 27.01.2025 and FIR was registered on 29.01.2025---Cancellation report was prepared on 04.02.2025 and forwarded by the prosecution branch on 06.02.2025 to the Trial Court---Said case was fixed before the Judicial Magistrate for hearing on 08.02.2025 and on the same date on the basis of non-appearance of the complainant the Trial Court agreed with the cancellation report and passed the impugned order---Furthermore, the summons issued to the complainant was not duly served, resulting in the complainant's absence before the Court, however, instead of affording the complainant an opportunity to appear, the Court proceeded to pass the impugned order---Said aspect of the matter raised the question as to what urgency existed in the matter that prompted the concerned SHO to file the cancellation report and led the Court to pass the impugned order in such a hasty manners---Story indicated that the due process was not adopted by the Investigating Agency as well as by the Trial Court---Constitutional petition was allowed accordingly and impugned order passed by Judicial Magistrate was set-aside and matter was remanded to investigating agency of submission of fresh report under S.173, Cr.P.C.

Tanveer Ahmed for Petitioner.

Ms. Sumaira Khursheed, State Counsel with Zulfiqar Ali, Investigation Officer, P.S. Aabpara, Islamabad, Sajid Cheema, DSP (legal), Islamabad Police, Wajid Munir, Deputy District Prosecutor and Asim Ghaffar, SHO, Aabpara, Islamabad for Respondents.

Order

Muhammad Asif, J.---Through the instant petition, the petitioner has impugned the order dated 10.02.2025 passed by the Judicial Magistrate Sec-30, Islamabad-West, whereby the cancellation report filed by the SHO, Police Station Aabpara was accepted.

1. The learned counsel for the petitioner argued that the cancellation of FIR No. 117/2025 of Police Station Aabpara is based on perfunctory and non-transparent investigation process, devoid of due diligence required in matters involving threats to life; that the impugned order passed by the learned Judicial Magistrate suffers from non-application of mind and is in violation of the principles settled by the Superior Courts regarding fair investigation and the duties of the Magistrate under Section 173 Cr.P.C. that the cancellation report dated 04.02.2025 was prepared, submitted, forwarded and approved in an exceedingly hasty manner, despite the fact that the alleged occurrence took place on 27.01.2025 and FIR was registered on 29.01.2025. The cancellation report was prepared on 04.02.2025, forwarded by the prosecution branch on 06.02.2025, and ultimately approved by the Judicial Magistrate, Sec-30 Islamabad-East, on 10.02.2025 at his own, throughout this entire process, the complainant was neither informed nor listed at any stage, and was excluded from any part of the proceedings; that it was the duty of the investigating officer to collect the necessary evidence; however he failed to make any efforts in this regard and instead directly applied for cancellation; that the petitioner was not issued any show-cause notice, summons or hearing opportunity before the submission or acceptance of the cancellation report, thereby violating the principle of audi alteram partem, rendering the proceedings arbitrary, and unlawful; that the impugned order of the judicial Magistrate has failed to consider the serious implications for public security and the protection of high profile citizen; hence instant petition may be allowed.

2. The learned State Counsel, assisted by the DSP (legal), repelled the above submission and argued that no irregularity or illegality had been found in the order impugned passed by the Judicial Magistrate Sec-30. The cancellation report by the Police was filed due to the non-cooperation of the complainant; hence, the instant petition is liable to be dismissed.

3. Arguments heard, record perused.

4. Perusal of the record reveals that the petitioner being a security officer of Bahria Town, reported the matter to the Police regarding threats received to the Ex-Chairman of Bahria Town Malik Riaz and his family members through email and suspicious surveillance of his daughter's residence wherein, an FIR No. 117 of 2025 under Section 506 (ii) P.P.C and 25-D Telegraph Act 1885 at Police Station Aabpara was registered against the Unknown persons.

5. The first and foremost requirement is to issue a notice to the complainant before accepting the cancellation report. It is undisputed that the officer in charge of the police station is obligated to inform the complainant of any action taken during the course of the investigation. This obligation is clearly stated in Section 173(b) of the Criminal Procedure Code (Cr.P.C.), which reads as follows: "(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given." This requirement is further reinforced by the Police Rules, 1934. Specifically, Rule 25.57, which pertains to final reports, reiterates this duty is reproduced as under:-

"If the informant is present when the final report is prepared, he shall be informed verbally of the result of the investigation, and, after noting this fact in the final report, his signature or thumb mark shall be taken on it. If the informant is not present, he shall be informed in writing by postcard or by the delivery of a notice by hand, and the fact that this has been done shall be noted in the final report. (Sub-rule (3) of Rule 25.57)

1. The Magistrate is required to ensure compliance with the aforementioned legal provisions and rules upon receiving a case-cancellation report. If the police officer has not issued a notice to the complainant, the Magistrate must issue such a notice himself. Although the impugned order states that a notice was served to the complainant, who then failed to appear, and such a statement is presumed to be true under Article 129(e) of the Qanun-e-Shahadat Order, 1984, this presumption applies only during trial or formal inquiry proceedings. As the current matter does not fall within that scope, it is directed that no adverse inference be drawn from that observation against the complainant/petitioner, 8. After conducting a thorough investigation, the Police recommended cancellation of the case in accordance with the procedure outlined in Rule 24.7 of the Police Rules, 1934. This rule provides that when information is recorded under Section 154 of the Criminal Procedure Code, 1898, and the investigation reveals that the case is: (i) maliciously false or false due to a mistake of law or fact; (ii) non-cognizable; or (iii) a matter suitable for civil litigation, the case may be cancelled by order of the Magistrate. Prior to the enactment of the Police Rules, 1934, the grounds for case cancellation were governed by the High Court Rules and Orders (1931), Volume III, which recognized only two grounds for cancellation: (i) the offence being non-cognizable and (ii) the case being false or unfounded, as outlined in the following rule.

1. Magistrate's power to cancel cases reported by Police: - In regard to cognizable cases reported by the Police to the Magistrate having jurisdiction under sections 157 and 173 of the Code of Criminal Procedure, it frequently becomes evident either (a) that the offence committed was really non-cognizable, or (b) that the information given to the Police was false or unfounded, and the Police apply for magisterial authority to show such cases as "non-cognizable" or "false" as the case may be. The Magistrate dealing with the Police reports in such cases, that is, ordinarily, the Magistrate who is empowered to take cognizance of the offence upon Police report, in respect of the particular Police Station, under section 159 or section 173 of the Code of Criminal Procedure, as the case may be, may, for sufficient reasons, pass an order accordingly.

(Chapter-11: Part D, Rule-1)

1. However, the Police Rules, 1934 introduced more comprehensive grounds for cancellation, adding a third category-namely, that the matter is appropriate for a civil suit. The role of the Magistrate in approving a cancellation report is more explicitly outlined in the High Court Rules and Orders, Volume III, which is reproduced below:

2. Duty of Magistrate to satisfy himself before passing order: -When a Magistrate agrees with a Police report that the FIR/case should be cancelled, he acts in an administrative and not in a judicial capacity and the order he makes is not a judicial order. Such an order is not a revisable order and, therefore, the Magistrate is not required to give reasons for his order. Though, Magistrates should exercise this discretion freely in making such order after satisfying themselves as to the grounds on which it is sought to be made, yet they should not treat the matter as one of ordinary routine. (See Rule 24.7 of the Punjab Police Rules, 1934 framed under section 46 of the Police Act, 1861 and Bahadur v. The State PLD 1985 SC 62).

2025 P Cr. L J 1434

[Islamabad]

Before Mohsin Akhtar Kayani, J

Malik Asif Noon and aother---Petitioners

Versus

FIA Islamabad and 2 others---Respondents

Writ Petitions Nos. 3563 and 3564 of 2024, decided on 30th April, 2025.

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

--- Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art. 199---Quashing of FIR---Constitutional jurisdiction of the High Court---Scope---Petitioner/accused sought quashing of FIR by invoking constitutional jurisdiction of the High Court---Validity---Allegations against the petitioners were that they caused huge loss to national exchequer---As per record, Show Cause Notices were served to the accused on 26.09.2024 and reminder of show cause notice was dispatched on 02.01.2025, however, till date the accused had not submitted their reply of show cause notice---Incomplete challan for both the FIRs had already been submitted in Trial Court---Report of Investigation Officer submitted contained the details of the petitioners'bank account details and their property details---In view of the said background, it was prima facie clear that both the petitioners had received a substantial amount in excess of their legitimate share---Despite being well aware that they had already received their lawful entitlement, they still accepted additional payments from the CDA in connivance with other co-accused, which they were not legally authorized to receive---However, the primary question raised by the petitioners pertained to S.9 of the Anti-Money Laundering Act, 2010, wherein it was claimed that the petitioners were not given a proper opportunity of hearing, as they had not submitted a reply to the notice issued under S.9 of the Act, 2010---Report of FIA was silent regarding the purpose of service of notice and the procedural details required to be fallowed under S.9 of the Anti-Money Laundering Act, 2010---However, that could not be considered as a ground for quashing of FIR---Answer, therefore, was in the negative, as the report already appended in the case prima facie provided an overview that certain properties were in the names of the petitioners, who had received certain payments beyond their legitimate share after the acquisition of the property by the CDA---At that stage, petitioners had not rendered any explanation regarding the source of income from which the residential properties were purchased, nor had it been clarified what their entitled share was in the land acquired by the CDA---Furthermore, no information had been provided to counter the allegation of overpayment received by the petitioners from the CDA---Therefore, in the absence of such information, which was also required to be collected by the Investigating Officer under S.9 of the Anti-Money Laundering Act, 2010, no case for quashing of FIR was made out---Issuance of notice was intended to provide the petitioners/accused an opportunity to explain the circumstances under which they received amounts beyond their legitimate share, as notified in the Qabzal Wasool---Onus was upon petitioners to absolve themselves of the said criminal liability---Therefore, the petitioners could not be given a premium for failing to respond to the notices issued by the Enquiry Officer under the Anti-Money Laundering Act, 2010---Thus, the case presented by the petitioners before the High Court seeking the quashing of the FIR was not substantiated in any manner---Petitioners had failed to demonstrate any illegality or mala fide intent on the part of the investigating agency for registration of these two FIRs---There was no indication of abuse of the legal process, nor had the petitioners claimed that no alternate remedy was available to them---Both the petitions were dismissed, in circumstances.

Ahmad Nadeem v. Chairman, Arbitration Council 1991 MLD 1198;FGEHA through DG Islamabad v. Ednan Syed and others PLD 2025 SC 11; Chairman NAB v. Nasar Ullah PLD 2022 SC 497; Attock Gen. Ltd. v. Additional Commissioner (Audit), Large Taxpayer Unit, Islamabad 2019 MLD 870; WAK Limited, Lahore v. Customs, Central Excise and Sales Taxs Appellate Tribunal 2018 PTD 253; Commissioner Inland Revenue v. Jahangir Khan Tareen 2022 SCMR 92; Amjad Mustafa Malik v. Director General, National Accountability Bureau and 4 others PLD 2021 Isl. 266; Director General, FIA v. Kamran Iqbal 2016 SCMR 447 and Muhammad Rafique v. Director General, Federal Investigation Agency, Islamabad 2023 PCr.LJ 38 and Sharjeel Javed v. The State 2024 MLD 1815 rel.

Muhammad Ilyas Siddiqui for Petitioners.

Ms. Kanz-us-Saadat Siddiqui, D.A.G. and Umder Arslan, A.D, F.I.A. for Respondents.

Assisted by Ms. Aymen Azeem, Law Clerk, Islamabad High Court.

Date of hearing: 15th April, 2025.

Judgment

Mohsin Akhtar Kayani, J.---Through this single judgment I intend to decide, both the captioned writ petitions having common question of law and facts.

1. Through W.P No.3563-2024, the petitioner has prayed for quashing of FIR No.06, dated 20.08.2024, under Sections 3/4 of Anti-Money Laundering Act, 2010, P.S F.I.A, AMLA, Islamabad.

2. Though W.P No.3564-2024, the petitioner has prayed for aquashing of FIR No.05, dated 20.08.2024, under Sections 3/4 of Anti-Money Laundering Act, 2010, P.S F.I.A, AMLA, Islamabad.

3. Learned counsel for the petitioners contends that the petitioners were granted post-arrest bail in these cases through Crl. Misc. No. 1796-B-2024 and Crl. Misc. No. 1797-B-2024, vide order dated 18.10.2024. The petitioners were already accused in case FIR No. 08/2024 dated 06.02.2024 under Sections 109, 409, 419, 420, 467, 468, 471, 477-A/3 P.P.Cread with Section 5(2) of the 1947 PCA, registered in the F.I.A Corporate Crime Circle, Islamabad, wherein they have already been granted post-arrest bail by this Court vide orders dated 27.03.2024 and 17.04.2024, respectively. It has further been contended that very registration of the second FIR is not maintainable, as the procedure prescribed under Section 9 of the Anti-Money Laundering Act, 2010 has not been adhered to, and the petitioners have not been provided due opportunity to explain their point of view with respect to the notice under Section 9 of the Anti-Money Laundering Act, 2010.

4. Conversely, the learned DAG, along with the Investigating Officer, F.I.A contends that challan has already been submitted in the Court and the proceeds of the crime have been identified. The petitioners have received compensation beyond their legitimate share, despite having already received compensation from the CDA and additional payments were received in connivance with the Accounts Officer (L and R), CDA, as well as with the help of the ex-Cashier, CDA, therepy hereby causing a loss to the national exchequer. It has further been contended that since the challan has been submitted in the Court, the petitioners' claim for quashing of the FIR is not maintainable, as an alternate remedy is available to the petitioners, which could be availed before the competent forum.

5. Arguments heard and record perused.

6. Perusal of record reflects that FIR No.05/2024 and FIR No.06/2024 were registered after concluding enquiry No.34/2024 FIA AMLC Islamabad. RE 34/2024 was initiated upon referral of FIA Corporate Crime Circle Islamabad to initiate Money laundering proceedings against the accused in FIR 08/24 registered in FIA CCC ISB. During the investigating of FIR 08/24 FIA CCC ISB, it transpired that the accused Malik Noman Noon and Malik Asif Noon in connivance of Muhammad Rafique Account Officer L&R Directorate CDA, Ashiq Hussain Shaad Account Officer L&R Directorate and Zeeshan Majeed Bhatti ex-cashier L&R Directorate CDA Islamabad had fraudulently drawn excess payment of Rs. 192,277,192/-causing loss to national exchequer. The fraudsters in collusion with each other replaced the pages of Qabzal Wasool (Acquaintance Roll) where already issued payment cheques were entered to release the excess payments in the name of claimants (accused). The accused changed the amounts in cheques by changing or adding the numerical numbers of payment amount in cheques.

7. As per CDA Patwari Report, CDA acquired land for the development of Sector H-16 and I-17 Islamabad vide CDA Award dated 15.01.2009. CDA made payments of compensation to legitimate affectees at the rate of Rs.830,000/- per kanal. As per report CDA acquired 21 Kanal and 14 Marla from Malik Noman Noon and acquired 21 Kanal and 14 Marla from Malik Asif Noon. And the total compensation payable to them was Rs. 18,026,660/- each.

8. As Per CDA Accounts Officer report, accused Malik Noman received Rs. 168,241,112/- from CDA through 18 cheques, therefore, the accused received an excess payment of Rs.150,214,452/-. Accused Malik Asif Noon received payment of Rs.60,083,401/- from CDA through 10 cheques, therefore, the accused received an excess payment of Rs.42,056,741/-.

9. The accused Malik Noman Noon and Malik Asif Noon were arrested on 26.09.2024. Subsequently they were granted bail by the Honorable Islamabad High Court. Show-Cause Notices were served to the accused on 26.09.2024 and reminder of show-cause notice was dispatched on 02.01.2025, however, till date the accused have not submitted their reply of show-cause notice. Incomplete challan for FIR 05/24 and FIR 06/24 have already been submitted in trial Court. The report I.O submitted contains the details of the petitioners Bank account details and their property details. The relevant except of the report is produced as under:

The accused Malik Noman Noon with active connivance of CDA Officials received an excess payment of Rs. 150,214,452/- causing huge loss to national exchequer. These amounts were parked in his multiple accounts:

i. Allied Bank Limited Account 0010025689250042

ii. Albaraka Bank Account#0120565885010

iii. Faysal Bank Limited Account#0267150000002454

As per CDA patwari and CDA Accounts Officer report break down of payments made to accused Malik Noman is as under:

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Sr# | Qabzal Wasool No. | Actual Amount | Amount Paid | Over Payment | Cheque | Date | | 1 | 162/180 | 1,628,234.00 | 1,628,234.00 | - | 5609 | 14/09/2013 | | 2 | 271 | 4,015,125.00 | 4,015,125.00 | - | 181391 | 22/07/2019 | | 3 | 1497 | 817,445.00 | 817,445.00 | - | 181392 | 22/07/2019 | | 4 | 1263 | 5.902,710.00 | 8,902,710.00 | 3,00,000.00 | 181406 | 20/09/2019 | | 5 | 951 | 1,756,937.00 | 9,756,987.00 | 8,000,000.00 | 181414 | 13/01/2020 | | 6 | 306 | 3,800,958.00 | 8,800,968.00 | 5,000,000.00 | 181416 | 13/01/2020 | | 7 | 1337 | 105,191.00 | 5,105,191.00 | 5,000,000.000 | 247621 | 13/01/2020 | | 8 | | | 40,125,313.00 | 40,125,313.00 | 313182 | 27/06/2022 | | 9 | | | 4,150,000.0 | 4,150,000.00 | | 08/02/2021 | | 10 | | | 5,902,710.00 | 5,902,710.00 | 245012 | 12/05/2021 | | 11 | | | 2,474,432.00 | 2,474,434.00 | 248025 | 20/05/2021 | | 12 | | | 5,700,015.00 | 5,700,015.00 | 248026 | 20/05/2021 | | 13 | | | 9,587,184.00 | 9,587,184.00 | 248445 | 06/06/2021 | | 14 | | | 34,761,051.00 | 34,761,051.00 | 242030 | 18/06/2021 | | 15 | | | 9,756,987.00 | 9,756,987.00 | 31367 | 22/06/2022 | | 16 | | | 3,887,167.00 | 3,887,167.00 | 31369 | 22/06/2022 | | 17 | | | 8,563,609.00 | 8,563,609.00 | 313173 | 22/06/2022 | | 18 | | | 4,305,984.00 | 4,305,984.00 | 247797 | 10/02/2021 | | Total | | 18,026,660.0 | 168,241,112.00 | 150,214,452 | | |

After transferring proceeds of crime to the above mentioned accounts payments were made to acquire following properties (Movable/Immovable):

| | | | --- | --- | | Sr. | Property (Moveable/Immovable) | | 1. | Plot 450-C, Sector I-14/3, Islamabad | | 2. | Plot 203-B, Sector I-14/3 Islamabad | | 3. | Plot 167-C, Sector I-14/3 Islamabad | | 4. | Plot 58, Sector I-10/3 Islamabad |

During the investigation proceedings it transpired that the accused Noman Noon has given kickbacks to Zeeshan Majeed Bhatti son of Abdul Majeed Bhatti from his Allied Bank Account in the following manner:

| | | | | | --- | --- | --- | --- | | Sr# | Cheque# | Amount | Date | | 1 | 70130081 | 2,500,000/- | 18.03.2022 | | 2 | 70130082 | 5,500,000/- | 28.06.2022 | | 3 | 70130083 | 5,500,000/- | 28.06.2022 | | 4 | 70130084 | 2,500,000/- | 27.07.2022 | | 5 | 70130085 | 2,500,000/- | 27.07.2022 | | Total | | 18,500,000/- | |

The accused Malik Asif Noon with active connivance of CDA officials received an excess payment of Rs.42,056,741/- causing huge loss to national exchequer. These amounts were parked in his following account:

1. Allied Bank Limited Account#0010025689070039

As per CDA patwari and CDA Accounts officer report break down of payments made to accused Malik Noman Noon is as under:-

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Sr# | Qabzal Wasool No. | Actual Amount | Amount Paid | Over Payment | Cheque | Date | | 1 | 162/191 | 1,628,234.00 | 1,628,234.00 | - | 5609 | 14/09/2013 | | 2 | 271 | 4,015,125.00 | 4,015,125.00 | - | 181420 | 16/01/2020 | | 3 | 1497 | 817,445.00 | 817,445.00 | - | 247591 | 24/08/2020 | | 4 | 1263 | 5,902,710.00 | 8,902,710.00 | 3,000,000.00 | 247590 | 24/08/2020 | | 5 | 951 | 1,756,987.00 | 9,756,987.00 | 8,000,000.00 | 181808 | 17/04/2020 | | 6 | 306 | 3,800,968.00 | 8,800,968.00 | 5,000,000.00 | 181419 | 16/01/2020 | | 7 | 1337 | 105,191.00 | 5,105,191.00 | 5,000,000.00 | 247622 | 09/10/2020 | | 8 | | | 4,015,125.00 | 4,015,125.00 | 248025 | 17/05/2021 | | 9 | | | 8,174,450.00 | 4,150,000.008, 174,450.00 | 248029 | 17/05/2021 | | 10 | | | 8,867,166.00 | 8,867,166.00 | 248442 | 13/05/2021 | | Total | | 18,026,660.00 | 60,083,401.00 | 42,056,741.00 | | |

After transferring proceeds of crime to the above-mentioned accounts Dayments were made to acquire following properties Movable/Immovable):

| | | | --- | --- | | Sr. | Property (Moveable/Immovable) | | 1. | Plot 91, Sector I-14/3 Islamabad | | 2. | Plot 118, Sector I-14/3 Islamabad | | 3. | Plot 235, Sector I-14/3 Islamabad |

1. In view of the above background, it is prima facie clear that both the petitioners have received a substantial amount in excess of their legitimate share. Despite being well aware that they had already received their lawful entitlement, they still accepted additional payments from the CDA in connivance with other co-accused, which they were not legally authorized to receive. However, the primary question raised by the learned counsel for the petitioners pertains to section 9 of the Anti-Money Laundering Act, 2010, wherein he elaimed that the petitioners were not given a proper opportunity of hearing, as they had not submitted a reply to the notice issued under Section 9 of the said Act.

Provisional attachment under Section 8 of AMLA, 2010

1. Prior to consider the primary question of investigation and notices under Section 9 of the Anti-Money Laundering Act, 2010, it is necessary to look at the scheme legislature has provided to the Investigating Officer under subsection (1) of Section 8 of the Act. This process initiates with the provisional attachment of property allegedly involves in money laundering, based on a report received from the concerned investigating or prosecuting agency, by an order in writing with the prior permission of the Court, which ultimately culminates in provisional attachment.

2. However, for such purposes, the investigating officer must have formed a reasonable belief that the property attached is involved in money laundering or proceeds of crime. The process mentioned under Section 8 of AMLA reflects a precondition that the investigating officer must exercise due diligence prior to the issuance of notice under section 9(1) to the concerned person. The due diligence includes collecting information or a report from any relevant agency, including but not limited to the State Bank of Pakistan, FMU, SRBs, AML/CFT regulatory authority, etc. Therefore, it is evident that before exercising powers under Section 9 of the Anti-Money Laundering Act, 2010, the investigating officer must possess sufficient material that reasonably satisfies him that it is appropriate to proceed further. The minimum requirement for notice is as under:

i. indicate the sources of his income.

ii. earning or assets, out of which or by means of which he has acquired the property attached under subsection (1) of section 8, or, seized under section 14 or section 15.

iii. The person if relies upon any other information or particulars.

1. After taking the prior action under section 8, which is more like preventive measure from changing the nature and status of attached property, the Investigating Officer begins the investigation and serves a notice of not less than 30 days to the concerned person. This notice must be issued no later than seven days from the date of the attachment order made under subsection (1) of Section 8 or any action taken pursuant to the seizure of property under Section 14 or 15 of the Act. Whereas, after obtaining the prior permission of the court for provisional attachment of the immovable property, the I.O. shall be restrained from "sealing" the property and must not prevent the persons interested in the property to enjoy the benefits arising out of that property.

Notices Under Section 9(1) of AMLA, 2010

1. From the textual language of section 9 (1) it is implied that the notice must be clearly worded, containing details of the property, timelines of its purchase and registration, sources of funds, or any other information that could establish that the property was purchased or owned by the person to whom the notice has been issued. That person must be able to demonstrate that the amount used was obtained from a legitimate source, as reflected in records, such as income from business or property, or a loan received from any commercial or private entity or person.

2. Now the question arises as to, whether the notice is to be considered an ordinary notice to convey information or there is a requirement to reply to the same? Before answering this question, it is better to dilate upon the definition of notice and the types of notices, if there any. For that purpose, I took guidance from precedent judgments and Black's Law Dictionary, 5th Edition where the definition of "notice" is stated at length along with its types as follows:-

"Notice. Information; the result of observation, whether by the senses or the mind; knowledge of the existence of a fact or state of affairs; the means of knowledge. Intelligence whatever means communicated."

In another sense "notice" means information, an advice or a written warning in more or less formal shape, intended to apprise a person of some proceedings in which his interests are involved or informing him of some fact which it is his right to know and duty of the notifying party to communicate."

Further notice is categorized in several types including actual notice which is stated as follows: -

Actual notice. Actual notice has been defined as notice expressly and actually given, and brought home to the party directly. The term "actual notice," however, is generally given a wider meaning as embracing two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry, the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge. In this sense actual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry.

1. Express notice. Express notice embraces not only knowledge, but also that which is communicated by direct information, either written or oral, from those who are cognizant of the fact communicated.

2. Implied notice. Implied notice is one of the varieties of actual notice (not constructive) and is distinguished from "express" actual notice. It is notice inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character as to put him upon inquiry, and which, if the inquiry were followed up with due diligence, would lead him definitely to the knowledge of the main fact. "Implied notice" is a presumption of fact, relating to what one can learn by reasonable inquiry, and arises from actual notice of circumstances, and not from constructive notice. Or as otherwise defined, implied notice may be said to exist where the fact in question lies open to the knowledge of the party, so that the exercise of reasonable observation and watchfulness would not fall to apprise him of it, although no one has told him of it in so many words.

Lahore High Court in one of its judgments reported as MLD 1991 Lahore 1198 (Ahmad Nadeem v. Chairman, Arbitration Council) placed reliance on Aiyar's Judicial Dictionary 9th Edition and Ballentine's law Dictionary 3rd Edition which defined notice as providing someone knowledge or information that he was ignorant of.

1. Now keeping in view, the above definitions adverts towards the answer of our question mentioned above in para 16. The answer is provided in subsection (2) of Section 9 under clause (a), which says "considering the reply, if any, to the notice issued under subsection (1)". Here the duty of the Investigating Officer to seek reply is supported by the use of the term "shall," which indicates that it is a mandatory legal requirement to receive a reply. For this purpose, the Investigating Officer must make every effort to obtain a reply to the notice. The notice served under Section 9 of the Anti-Money Laundering Act, 2010 is best characterized as an express actual notice, as defined in Black's Law Dictionary (5th Edition). According to this definition, express notice includes direct, personal communication of facts either written or oral made by someone with knowledge of those facts. Section 9 notice is not an ordinary procedural formality, but a substantive and protective step reflecting the special nature of anti-money laundering proceedings. Importantly, the law gives a minimum thirty-day response period, which clearly indicates the legislature's intent to ensure that the accused is given adequate time and opportunity to nature explain the sources of income and the legitimacy of the attached or seized assets.

In Case of No Response to Notice

1. Even if the person to whom the notice was issued fails to respond refuses to respond, ignores the notice, or is not available at the given address, it is the duty of the Investigating Officer to make a serious effort to trace all possible addresses, mobile numbers, emails, or any other means of contact through which the person can be reached. If no such address is available or the person is deliberately hiding or concealing himself to avoid the proceedings under this law, the responsibility of the Investigating Officer increases significantly. The Investigating Officer must then ensure the discovery, recovery, and collection of all incriminating materials based on reports from other agencies or persons, and record his findings accordingly.

2. I have considered the sub-clause "a" of subsection (2) of Section 9, where the legislature has used the phrase "considering the reply, if any" and gave the Investigating Officer the leverage to proceed further if a reply has been received or not, it does not absolve the officer from adhering to the mandatory procedures. The primary duty of the Investigating Officer, in all respects, is to issue notice and receive a reply. Even otherwise, such a reply provides a way forward in matters of this nature and offers a clear picture to the trial Court to prosecute the accused on the basis of all such reports submitted by the Investigating Officer regarding the offence of money laundering. Therefore, this is not a simple case where the responsibility of the investigating officer ends upon delivering a single notice at one address. Rather, there is no bar under the law on the officer from issuing multiple notices, three, four, or even five at all known addresses, and through all available modes of service, including digital and electronic means, as well as social media platforms, in this modern technological era.

Due Process and Fair Trial

1. The mandate of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, when seen in the context of fair trial and due process for the determination of civil rights and obligations or any criminal charges against a person, clearly establishes that due process is mandatory feature. Every individual, who is likely to face such proceedings must be informed of the course of action being taken against them, so that they are able to respond to the information sought by the Investigating Officer. The person must be given the opportunity to prepare a defence of their choice, with a free mind, after due consideration. It is not within the mandate of the term "due process" that any action be taken behind a person's back, without informing them, without seeking an explanation, or without providing them an opportunity to present their perspective. Therefore, the ordinary meaning of the term "due process" is to be seen in the light of the definition explained in the judgment reported as PLD 2025 SC 11 (FGEHA through DG Islamabad v. Ednan Syed and others) and PLD 2022 SC 497 (Chairman NAB v. Nasar Ullah).

2. In addition to above definition, processes, procedural actions, activities, exercises, fair business tasks, and undertakings require proper action to provide individuals, who have been issued a notice with the right to explain.

Nature of Offence Under AMLA, 2010

1. A plain reading of the legislative intent envisaged under Sections 8, 9, 14, and 5 of the Anti-Money Laundering Act, 2010 clearly indicates that the purpose of this Act is to prevent money laundering, combat the financing of terrorism, and provide for the forfeiture of property derived from or involved in money laundering. This is to be addressed within the scope of the definition rendered in Section 3, which states that a person shall be guilty of the offence of money laundering if they:

· Acquire, convert, possess, use, or transfer property, knowing or having reason, to believe that such property is the proceeds of crime;-

· Conceal or disguise the true nature, origin, location, disposition, movement, or ownership of property, knowing or having reason to believe that such property is the proceeds of crime;

· Hold or possess on behalf of any other person, any property knowing or having reason to believe that such property is the proceeds of crime;

· Participate in, associate with, conspire to commit, attempt to commit, aid, abet, facilitate, or counsel the commission of such acts.

1. If a person has been declared guilty of the offence of money laundering, it should not be considered an ordinary criminal case. Rather, the entire Act provides a comprehensive mechanism and legal framework enabling the Investigating Officer to proceed effectively with the investigation. This includes obtaining multiple reports from reporting entities, such as the State Bank of Pakistan, SRBs, and seeking international cooperation through foreign counterparts, regulators, or financial monitoring units on technical matters. The Investigating Officer may also collect information from the FBR, tax authorities, revenue authorities, registrar offices, SECP, or any other government departments or private companies.

2. In this regard, the law does not mandate that the Investigating Officer can proceed without obtaining responses or replies to issued notices. The Investigating Officer is under a legal obligation to record their findings only after confronting the accused with all the relevant materials and replies received, as well as any evidence collected. Therefore, the findings given by the Investigating Officer are based on all incriminating material and the level of satisfaction reached, whereby no other conclusion can be drawn, except that the property or assets in question, acquired by the accused, are to be considered none other than proceeds of crime.

Concent of Show-Cause Notice

1. Even otherwise, subsection (1) of Section 9 further introduces another concept of a show-cause notice, empowering the Investigating Officer to ask the accused person why all or any of such properties should not be declared as properties involved in money laundering and forfeited to the Federal Government. The purpose of show-cause is providing an adequate opportunity to the accused of submitting an explanation as held in 2019 MLD 870 Islamabad (Attock Gen Ltd. v. Additional Commissioner (Audit), Large Taxpayer Unit, Islamabad). Such a show-cause notice is a subsequent stage following the collection of requisite information under the notice referred to above, in terms of subsection (1) of Section 9. However, Section 9 is silent regarding any adverse action and that may be taken by the Investigating Officer against a person, who fails to respond to the notice, refuses to submit a reply with an explanation, or declines to provide the required information. No penal provision is provided under section 9 in case of non-provision of reply to the notices. Nevertheless, such a refusal does not create an exception allowing the Investigating Officer to proceed directly against the accused persons unless a sufficient level of satisfaction has been achieved based on incriminating material and a detailed report to that effect is to be prepared. However, it does not mean that the I.O. may arrest the accused person merely for not providing the requisite information.

2. The legislature has used the word "Show Cause" in subsection (1) of Section 9 of Anti-Money Laundering, Act, 2010 with a further phrase that why all or any of such properties should not be declared to be the properties involved in money laundering and forfeited to the Federal Government. Such concept outrightly put a serious emphasis on the Show-Cause Notice, which reflects that the accused shall be notified with his illegality, incriminating material, the source of properties or assets, crime proceeds with a warning so that the he may answer the allegations against him and be given an adequate opportunity opportunity to explain his position. The Jurisprudence is now pretty settled on the point that Show-Cause Notice is a serious business and is not a casual correspondence. Its purpose is to put the person on notice about the allegations for which the authorities intend to proceed against him and to give him an opportunity to explain his position. This principle is rooted in the principles of natural justice and fair trial in case law reported as 2018 PTD 253 [Lahore] (WAK Limited, Lahore v. Customs, Central Excise and Sales Tax Appellate Tribunal) in the following manner:-

(i) Validity of show-cause notice is fundamental to the assumption of jurisdiction by the authority concerned.

(ii) A show-cause notice should indicate that it is a show-cause which makes the respondent aware that if he does not respond to it adverse action might be taken against him.

(iii) If there is any pre-requisite for the issuance of a show-cause notice the same must be fulfilled. Where a statutory show-cause notice is required to be served, the Department cannot proceed without it. Any demand notice issued without such statutory notice would be coram non judice.

(iv) Mere allegation that a particular provision of law has been breached is not enough. The show-cause notice must be specific and should not be couched in general terms. It should contain the essential ingredients necessary to show infraction of law.

(v) The grounds or reasons must be explicitly set out. The show-cause notice carrying the defect of vagueness may not stand the test of judicial scrutiny.

(vi) Omission to mention in the show-cause notice the specific provision which is alleged to have been contravened is not fatal and does not ipso facto make it void.

1. Therefore, the investigating agency or officer must distinguish between the notice and a Show-Cause Notice issued under subsection (1) of Section 9, as they are of entirely different nature. Issuance of a Show Cause Notice is mandatory, requiring the authority to formally notify the person concerned, thereby affording him an opportunity to submit a reply with reasonable cause as to why a particular action should not be taken against him, or to provide an explanation regarding the assets, proceeds of crime, or properties under the Anti-Money Laundering framework. This procedural safeguard ensures that a fair opportunity is granted to the accused to lead his defence as held in 2022 SCMR 92 (Commissioner Inland Revenue v. Jahangir Khan Tareen).

2. There is no denial to the prosecution that Show-Cause Notice must support with evidence which determines the offence attracted in a particular case. Show-Cause Notice is not a casual correspondence or a tool or license to commence a roving inquiry into the affairs of accused, based on assumptions and speculations but is a fundamental document that carries definitive legal and factual position of the investigation agency as well as of the accused person, therefore, the requirement highlighted in WAK Limited Lahore (supra) must be strictly observed in every Show-Cause Notice issued by the Investigation Officer in cases involving money laundering.

Procedure of Income Tax Law is Appropriate

1. Now question arises if no such reply is provided by the accused person, or any related material is not submitted by the accused or any other person, then in such a situation, is it permissible to proceed ex-parte against the accused person based solely on incriminating material or other information? In such cases, the Rocedure provided in income tax laws is the most appropriate, as it allows for a step-by-step approach and provides ample opportunity for the accused person to explain their point of view. The primary onus lies upon the accused to explain their position; it is not the responsibility of the prosecution to discharge this burden at the initial stage particularly during the investigation phase. The role of the investigating officer is to collect incriminating materials and pose relevant questions to the accused. It is advisable that a questionnaire be sent to the accused person, or to any other individual from whom an explanation or information is required, so that maximum relevant information can be extracted/collected to prove the charge under Section 3 of the Anti-Money Laundering Act, 2010, in a Court of law.

Scheme of Anti-Money Laundering Law

1. The entire scheme of the Anti-Money Laundering Act, when seen in the context of the sentence provided under Section 4 of the Act, which prescribes a minimum punishment of not less than one year and a maximum of up to ten years, along with a fine of up to Rs. 25 million, as well as forfeiture of the property involved in money laundering or property of equivalent value shows that the procedure envisaged in Section 9 largely reflects the concept of civil proceeding and determination of civil rights. These proceedings are subsequently culminated into criminal prosecution, when the matter is placed before the trial Court under this law. Similarly, the investigating officer should not behave like a police officer, where an individual, upon choosing not to answer questions, is immediately arrested. Despite having the powers under subsection (1) of Section 55 Cr.P.C., the officer can defer the arrest. Crimes under AMLA are categorized as white-collar crimes and arrest in such alleged crimes in a mechanical fashion may generate serious consequences. The manner in which power to arrest by an agency or investigating officer is to be availed is discussed at length by a Division Bench of this court in a judgment reported as PLD 2021 Islamabad 266 (Amjad Mustafa Malik v Director General, National Accountability Bureau and 4 others). Therefore, in such cases, it is more advisable that, instead of arresting the person from whom information is sought, the officer should allow the individual an opportunity to submit an explanation unless the investigating officer is satisfied that all necessary material and information have already been obtained.

2. Now adverting towards the conduct of the Investigating Officer in this case, who submitted a report that was agreed upon by the Zonal Board, F.I.A, comprising of four officials of the F.I.A, who concurred with the recommendations. However, surprisingly, a notice under Section 8 of the Anti-Money Laundering Act, 2010 is available on record, a notice under Section 9, titled as a "Show-Cause Notice", is appended in the report, whereas the other notice confirming the information called for from the petitioners is not available on record. This missing part highlights that the Investigating Officer has not applied the true spirit of Section 9, though he collected all relevant materials, including but not limited to information from the CDA Land and Rehabilitation Directorate, the bank, and revenue authorities. Therefore, this Court is of the view that the notice issued to the petitioners including the Show-Cause Notice, although referring to the address of the petitioners, is entirely different from the particulars referred in the writ petition or in the affidavit.

3. Furthermore, no report is available on record to verify that the Investigating Officer made any serious effort to place the relevant questions or requisition the information claimed from the petitioners in writing, or that the notices were duly served. Even though the notices contain mobile numbers, there is no report available indicating whether the numbers were unresponsive or if the accused persons refused to reply to the Investigating Officer's queries.

4. In the absence of such a report, this Court is not in a position to agree with the resporse given by the Investigating Officer that he fulfilled the minimum requirements of clause (a) of subsection (2) of Section 9 of the Anti-Money Laundering Act, 2010 where it is mandatory to consider any reply, if received, to the notice issued under subsection (1). The phrase "if any" is to be considered a last resort, and justiciable efforts must be demonstrated by the Investigating Officer through a written report, which should be placed along with other incriminating material before the F.I.A Zonal Board. If such a report is silent on these aspects, the Zonal Board is under an obligation to return the report to the Investigating Officer with a direction to reinitiate the process, receive the reply along with supporting material from the concerned person or accused, and submit a fresh report to the Board or to the competent authorities for the purpose of prosecution conclusively to be held by the trial Court.

Separate Rules Under Section 9 AMLA, 2010.

1. Although, Section 9 of the Anti-Money Laundering Act, 2010 is exhaustive in nature, however, this court believes that rules may also be framed in terms of powers contained in Section 43 of the Act, to explain all the circumstances, mode and manner of investigation, and the imposition of rules if notified for the purpose of investigation, are intended to prevent the abuse of power by the Investigating Officer (I.O.) and to help the person who was given notice have confidence in the investigation system, ensuring that their right to a fair trial with transparency is protected. However, in terms of Section 5 of the Act, the Federal Government may, in consultation with the National Executive Committee, make rules for the effective implementation of this Act the framing of a national policy to combat money abad laundering and the financing of terrorism. In this context, a well-defined oversight mechanism is essential to achieve the purpose of this law by effectively implementing the national strategy and ensuring that all the notices are properly served.

Recommendations to Overcome Investigation Gaps

1. No doubt, the Criminal Procedure Code is applicable in terms of Section 22 of the Act to the proceedings before the Court. However, it is applicable insofar as it is not inconsistent with the provisions of this Act. It applies to arrest, bail, bonds, search, seizure, attachment, forfeiture, confiscation, investigation, prosecution, and all other proceedings under this Act. Therefore, the term 'investigation' has been used in the said provision. If the mandate of the Criminal Procedure Code has been considered, there is no separately defined notice available in the Code. However, the Anti-Money Laundering Act, 2010 being a specialized law, provides the details of the subject of notice to be given to the accused or any other person from whom information or details are required in money laundering cases. Therefore, it is not the purpose of the Act to allow the investigating officer to act in an ex parte manner and submit a report in a mechanical fashion to the concerned authorities, who then agree to the recommendations in an omnibus order. Rather, it is the duty of the superior authorities, as well as the recommending agencies, to prosecute the accused and satisfy their conscience that proper service of notice was given, and proof to that effect has been appended with the report. This ensures that the accused person or any other person cannot claim that they were unaware of the oply proceedings or that they wish to explain their perspective before the Court of law when a final report is submitted. In this backdrop, the Court may feel handicapped when the plea raised by the accused person requires further investigation or probe.

2. In such an eventuality, the Court can also exercise its powers to further direct the investigating officer or any other agency to provide all necessary information or material. The Court may also direct the Investigating Officer to formulate a fresh view or record the findings for the satisfaction of the trial Court; however, such an order requires justified reasons from the trial Court.

3. The involvement of any property or the declaration of any financial means as crime proceeds is a technical subject that may not be proven in a direct manner. Multiple reports, statements, and technical assistance are required from specialists, such as experts in tax audit, forensic audit, corporate affairs, or information technology. Their reports may be used in prosecution at a later stage, but the investigating officer requires the collection of these materials.

4. If we consider this aspect in juxtaposition with the mandate of the Qanun-e-Shahadat Order, 1984, the primary onus in terms of Section 9 of the Act and investigation lies upon the person against whom a notice has been issued based on reasonable satisfaction. While collecting any report by the investigating officer or investigating agency, the burden is shifted to the accused person, who is then obligated to explain their point of view. This can lead to exoneration at the investigation stage subject to justified reasons submitted by the accused as reflected in the final report by the investigating officer. Additionally, any other person with an interest in an immovable property, or someone claiming entitlement to it, or a third person, may also be given notice by the investigating officer, Similarly, the person, other than the accused, is required to prove that the property is not involved in money laundering activities. The wording used by the legislature in the first proviso of subsection (2) of Section 9 places a serious burden on the accused person or a third party involved in such cases. To demonstrate that the property or asset referred by the I.O. is not achieved through laundered money and not crime proceeds. They are required to explain any link with the property or the proceeds of crime, and if a satisfactory explanation is not provided, the investigating officer shall proceed accordingly. However, it is mandatory for the investigating officer to give the accused person or any third party the right of hearing in this regard and issue notices accordingly. Therefore, any final report submitted by the I.O. must reflect compliance with this requirement and should satisfy the following tests to ensure proper service of notice:

i. Non-attachment of report of notice to the accused person or a third person on its residential, business or any electronic address or any other known address will be treated non-service of notice, ii. Investigating officer shall append a detailed report of service through physical service of notice at the address of the accused person or a third person on all properties including but not limited to the properties purchased through the proceeds of crime, may serve a notice based upon NADRA address reports after receiving the particulars or on the address notified in the tax record or serve a notice on any business address which has been registered with the Registrar of Firms or in the SECP or before any other Regulator.

iii. Investigating Officer shall submit a report of his visits for serving the notice upon the accused person along with documents though registered post, receipts, TCS or any other private companies receipts through which it could be assumed that notices were served or may submit a notice recording in which accused acknowledges the receiving of notice.

iv. A separate note has to be appended along with final findings if the accused has not participated in the Investigation proceedings to satisfy the competent authority or the F.I.A Board or any other authority that serious efforts were made for the purposes of service of notice.

v. Trial Court if comes to a conclusion that accused was not given due opportunity of hearing or reasonable explanation are required qua crime proceeds for the properties in question or the source of income or the assets belong to the accused, the matter may be handed over to the investigating officer for further reply and detail report to be additionally filed in the Court after extending due right of hearing to the accused within time frame given by the trial Court to achieve the satisfactory compliance of requirement of Section 9 of AMLA, 2010.

1. The abovementioned processes are also important as they provide the requisite information that must be laid before the competent authority before allowing the prosecution to proceed further and submit a conclusive report in Court. If this information is not provided, the Court may feel handicapped during the trial, and the investigating officer in the witness box may fail to explain the efforts made to achieve satisfaction in coming to the view that the accused obtained assets through proceeds of crime. In such an eventuality, the prosecution might fail, and the entire effort would become futile, as envisaged in Section 9, which is meant to prevent the future failure of the prosecution.

2. No doubt, the accused is also entitled to present all such information and documents, or call any person as a witness including, but not limited to, officials of any department or agency in his defence to prove that the properties, assets, or income are not proceeds of crime and do not fall within the mandate of Section 3 of the Anti-Money Laundering Act, 2010.

3. In view of the above, the FIA report is silent regarding the purpose of service of notice and the procedural details required to be followed under Section 9 of the Anti-Money Laundering Act, 2010. However, this could not be considered as a ground for quashing of the FIR. The answer, therefore, is in the negative, as the report already appended in this case prima facie provides an overview that certain properties are in the names of the petitioners, who have received certain payments beyond their legitimate share after the acquisition of the property by the CDA. At this stage, learned counsel for the petitioners has not rendered any explanation regarding the source of income from which the residential properties were purchased, nor has it been clarified what their entitled share was in the land acquired by the CDA. Furthermore, no information has been provided to counter the allegation of overpayment received by the petitioners from the CDA. Therefore, in the absence of such information, which is also required to be collected by the investigating officer under Section 9 of the Anti-Money Laundering Act, 2010, this Court is of the view that this is not a justified case for quashing of the FIR.

CONCLUSION.

2025 P Cr. L J 1526

[Islamabad]

Before Khadim Hussain Soomro and Inaam Ameen Minhas, JJ

Rafaqat Hussain Shah---Appellant

Versus

The State---Respondent

Jail Appeal No. 385 of 2024, decided on 23rd April, 2025.

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

----Ss. 364-A & 493-A---Anti -Rape (Investigation and Trial) Act (XXX of 2021), S. 17---Kidnapping or abducting a minor, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, sexual abuse of minor---Appreciation of evidence---Delay of eight days in lodging the FIR---Accused/appellant was charged for abducting the minor daughter of the complainant for cohabitation caused by accused deceitfully inducing a belief of lawful marriage---Complainant admitted in his cross-examination that the FIR was registered with a delay of eight days---Record reflected that alleged incident took place on 03.01.2022 and the FIR was registered on 11.01.2022---Complainant had admitted that the police station was at a distance of hardly 30 to 45 minutes---No reasonable explanation for the delay had been provided---Even during the testimony in the Court, the witnesses did not mention the reason for the delay---Thus, the significant delay in initiating legal proceedings casted doubt on the credibility of the prosecution's case---Appeal against conviction was allowed, in circumstances.

Haider Ali v. The State 2016 SCMR 1554 and Muhammad Siddique v. The State others 2019 SCMR 1048 rel.

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

----Ss. 364-A & 493-A---Anti-Rape (Investigation and Trial) Act (XXX of 2021), S. 17---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping or abducting a minor, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, sexual abuse of minor---Appreciation of evidence---Withholding material witness---Adverse presumption---Accused/appellant was charged for abducting the minor daughter of the complainant for cohabitation caused by appellant deceitfully inducing a belief of lawful marriage---Complainant was not eye-witness to the alleged incident---However, knowledge of offence was derived solely from hearsay, as he was informed about the occurrence by his son---Notably, the Investigating Officer failed to examine said son of complainant, whose testimony would have been crucial for corroborating the complainant's version---Such omission raised serious doubts regarding the veracity and reliability of the complainant's account, as it lacked independent evidentiary support and remained uncorroborated by the material witness---Adverse presumption as enunciated under Art. 129 (g) of Qanun-e-Shahadat, 1984 would arise against the complainant that had the said witness appeared in the witness box, he would not have supported the stance of the complainant---Appeal against conviction was allowed, in circumstances.

Sher Ayaz Khan v. Gul Najeeb Khan 2025 SCMR 380 and Muhammad Akhtar v. The State 2025 SCMR 45 rel.

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

----Ss. 364-A & 493-A---Anti -Rape (Investigation and Trial) Act (XXX of 2021), S. 17---Criminal Procedure Code (V of 1898), S. 164---Kidnapping or abducting a minor, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, sexual abuse of minor---Appreciation of evidence---Confessional statement, retraction of---Scope---Accused/appellant was charged for abducting the minor daughter of the complainant for cohabitation caused by appellant deceitfully inducing a belief of lawful marriage---In her S.164, Cr.P.C statements before the Judicial Magistrate, the victim categorically stated that she had contracted marriage with the appellant of her own free will and consent and was voluntarily living with her husband---Statement recorded under oath before the Judicial Officer carried significant evidentiary weight---However, during the examination-in-chief before the Trial Court, the victim completely resiled from that position, alleging instead that the appellant had kidnapped her with the help of his parents---Said stark about-face, without any plausible explanation for the retraction, fundamentally undermined the credibility of victim's testimony---Sequence of events where the victim was sent to Dar-ul-Aman after her voluntary statement but later rejoined her parents before changing her version in Court further compounded the suspicion of external influence or ulterior motives---Given that the prosecution's case rested entirely on such inconsistent testimony without any corroborative evidence, the benefit of the doubt must necessarily accrue to the accused, warranting acquittal as per the standard of proof required in criminal cases---Appeal against conviction was allowed, in circumstances.

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

----S. 376---Rape---Testimony of a victim in cases of sexual offences---Significance---In a rape case, the sole statement of the victim alone is enough to prove the charge against the accused---However, the statement of victim must be independent, unbiased and straightforward to establish the accusation.

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

----Ss. 364-A & 493-A---Anti -Rape (Investigation and Trial) Act (XXX of 2021), S. 17---Kidnapping or abducting a minor, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, sexual abuse of minor---Appreciation of evidence---Co-accused acquitted on same set of evidence---Accused/appellant was charged for abducting the minor daughter of the complainant for cohabitation caused by appellant deceitfully inducing a belief of lawful marriage---Acquittal of co-accused/parents of appellant, by the Trial Court warranted a critical reassessment of the prosecution's case, particularly in light of the victim's specific allegations against them---Victim categorically stated that mother of appellant played an active role in the alleged kidnapping by luring her under the pretext of seeking help for shifting household items and was physically present and seated in the vehicle at the time of the incident---Despite these direct allegations, the Trial Court acquitted mother of appellant based on the same set of evidence that had been used to prosecute the present appellant---Such differential treatment of co-accused persons raised serious questions regarding the consistency and reliability of the prosecution's case---If the evidence was insufficient to establish the culpability of parents of appellant, despite the victim's explicit accusation, then the very foundation of the prosecution's case against the appellant, became inherently weak---Admittedly the prosecution had not filed an appeal against acquitted accused---Principle of judicial parity demanded that similarly situated accused persons should not be treated disparately unless there existed compelling distinguishing factors---Once prosecution witnesses were disbelieved concerning a co-accused, then they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature---Appeal against conviction was allowed, in circumstances.

Pervaiz Khan and another v. The State 2022 SCMR 393; Abdul Ghafoor v. The State 2022 SCMR 1527 and Sajjab Hussain v. The State 2022 SCMR 1540 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Single circumstance that raised doubt in a reasonable person's mind is enough to grant benefit to the accused as a matter of right, not as a favour.

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 and The State through P.G Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Syed Muhammad Tayyab for Appellant.

Nisar Ahmed Shah, State Counsel.

Azmat Hayat, S.I. for the State.

Complainant in person.

Date of hearing: 20th March, 2025.

Judgment

Khadim Hussain Soomro, J.---Through this jail appeal, the appellant has impugned the judgment dated 29.07.2024, passed by the learned Additional Sessions Judge/Judge Special Anti-Rape Court, Islamabad (East), whereby the appellant was convicted in case FIR No. 35, dated 11.01.2022, under section 364-A/493-A P.P.C, P.S Bhara Kahu, Islamabad, and sentenced to as under:-

Imprisonment for life in Section 364-A P.P.C, Imprisonment for life in Section 493-A P.P.C with a fine of Rs. 150,000/-and Rs.150,000/- as compensation under section 17 of Special Anti-Rape Act, 2021, which shall be paid by the accused Rafaqat Hussain to the victim.

Benefit of Section 382-B Cr.P.C is also extended to the accused, Rafaqat Hussain Shah. Both the sentences awarded to the accused shall run concurrently.

1. Brief facts of the case leading to this appeal are that on 11.01.2022, the complainant, Ghulam Murtaza, appeared at PS Bhara Kahu, Islamabad, and lodged an FIR stating that he is a laborer and has been living with his family for the last five months. On 03.01.2022, his wife went to the hospital for a check-up. Another family, whose name was Syed Rafaqat Hussain Shah, son of Sadaqat Shah, along with his mother and sister, Konain Nida, was also living with him. On 03.01 2022, when the complainant returned home, his daughter, aged about 12 years, was not present, nor was the other family, who had abducted his daughter and taken her away. He searched for his daughter but could not find any clue, and hence, he went to the police station. They also took away one Techno mobile, one cheque book, the Nikkah Form, and the complainant and his wife's ID cards. After the registration of the FIR, the accused/appellant was arrested on 07.05.2022, and the abductee was also recovered on the same day. Thereafter, the investigation was completed, and the case was challaned.

2. After supplying the case papers to the accused, the learned trial court framed the formal charge against him on 06.10.2022, to which he did not plead guilty and claimed to be tried.

3. To establish the accusation against the appellant, the prosecution examined the following witnesses: PW-1/Duty Officer, ASI Zahid Hameed; PW-2/IO, ASI Muhammad Anwar; PW-3/mashir, Constable Sher Ullah; PW-4/CMO, Dr. Javeria Ashraf; PW-5/complainant, Ghulam Murtaza; and PW-6/abductee, Mst. Kinza Batool, PW-7/Magistrate Aneel Saeed, PW-8/I.O S.I Azmat Hayat, PW-9/CMO Dr. Noor un Nisa, and PW-10/Moharar HC Nasir Nawaz. They produced the relevant documents. Thereafter, the learned Special Public Prosecutor closed the prosecution's side of the evidence.

4. The appellant, in his statement recorded under section 342 Cr.P.C, has denied the allegations leveled against him, pleading his innocence. However, the accused neither examined himself on oath nor led any evidence in his defense.

5. The learned trial Court, after evaluating the material brought on record and hearing the counsel for the parties, acquitted the co-accused Sadaqat Hussain Shah and Mst. Bibi Zaib un Nisa, whereas convicted and sentenced the appellant/accused Rafaqat Hussain Shah, through the impugned judgment, as discussed above.

6. Learned counsel for the appellant contended that the appellant is innocent and has been falsely implicated in this case; that the alleged incident took place on 03.01.2022, and the FIR was registered on 11.01.2022, with a delay of eight days, that during the course of the investigation, the alleged abductee was recovered on 07.05.2022, however, her statement under section 164 Cr.P.C. was recorded on 16.05.2022; that in her 164 Cr.P.C. statement, she did not support the case of the prosecution; that there is no documentary evidence to establish the age of the alleged abductee; that the certificate obtained from NADRA was after the lapse of 03 months from the registration of the FIR; that the examination-in-chief of the abductee is completely different from her 161 Cr.P.C and 164 Cr.P.C statements. Hence, it is a fit case for acquittal.

7. On the other hand, learned State Counsel, while supporting the impugned judgment, has submitted that the prosecution has proved its case against the appellant, who had abducted the minor girl and allegedly contracted the marriage but no nikkah-nama has been produced to that effect, that appellant has committed the illegal sexual intercourse with the minor abductee, that the abductee has deposed against the appellant before the Court while appeared as PW-6, therefore, instant appeal is liable to be dismissed.

8. We have given anxious consideration to the arguments of both sides and ed the entire material available before this Court with their assistance.

9. The complainant Ghullam Murtaza was examined as PW5, and admitted Apps examination that the FIR was registered with a delay of 8 days. The record reflects that alleged incident took place on the 3rd of January 2022, and the FIR was registered on the 11th of January 2022. The complainant has admitted that the police station is at a distance of hardly 30 to 45 minutes. No reasonable explanation for the delay, as mentioned above, has been provided. Even during their testimony in court, the prosecution witnesses did not mention the reason for the delay. Thus, the significant delay in initiating legal proceedings casts doubt on the credibility of the prosecution's case. The Reliance is placed in the case of "Haider Ali v. The State" (2016 SCMR 1554) and "Muhammad Siddique v. The State and others" (2019 SCMR 1048)

10. The complainant in the present case is not an eye-witness to the alleged incident. His knowledge of the offense is derived solely from hearsay, as he was informed about the occurrence by his son, Shabab Khan. Notably, the investigation officer failed to examine Shabab Khan, whose testimony would have been crucial for corroborating the complainant's version. This omission raises serious doubts regarding the veracity and reliability of the complainant's account, as it lacks independent evidentiary support and remains uncorroborated by a material witness. The adverse presumption as enunciated under Article 129(g) of Qanun-e-Shahadat, 1984 would arise against the complainant that had the said witness appeared in the witness box, he would not have supported the stance of the complainant. The reliance is placed in the case of Sher Ayaz Khan v. Gul Najeeb Khan (2025 SCMR 380). Similarly in the case of In Muhammad Akhtar v. The State (2025 SCMR 45), the honorable Supreme Court held that the presence of the complainant at the scene of the occurrence was doubtful. Those people whose presence at the scene of the crime is alleged have not been produced before the court. Hence, the court made adverse presumption under Article 129(g) of the QSO that had the two witnesses been produced at the trial, they would not have supported the prosecution version.

11. The evidentiary value of the victim's testimony in this case stands severely compromised due to material contradictions between her initial statement recorded under Section 164 Cr.P.C and her subsequent deposition before the trial court In her 164 statements before the magistrate, the victim categorically stated that she had contracted marriage with the appellant, Rafqat Hussain Shah, of her own free will and consent, and was voluntarily living with her husband. This statement, recorded under oath before a judicial officer, carries significant evidentiary weight. However, during the examination-in-chief before the trial court, the victim completely resiled from this position, alleging instead that the appellant had kidnapped her with the help of his parents. This stark about-face, without any plausible explanation for the retraction, fundamentally undermines the credibility of her testimony. The sequence of events where the victim was sent to Dar-ul-Aman after her voluntary statement but later rejoined her parents before changing her version in court further compounds the suspicion of external influence or ulterior motives. Given that the prosecution's case rests entirely on this inconsistent testimony without any corroborative evidence, the benefit of the doubt must necessarily accrue to the accused, warranting acquittal as per the standard of proof required in criminal cases.

12. No doubt, it is a well-established legal principle that in a rape case, the sole statement of the victim alone is enough to prove the charge against the accused. However, the statement must be independent, unbiased, and straightforward to establish the accusation. This particular case presents a distinctive set of circumstances, including the nature of the incident, conflicting statements from the victim and witnesses, and a lack of conclusive medical evidence.

13. Medical evidence holds paramount importance in the adjudication of rape cases, particularly under the statutory mandate of Section 164A of the Code of Criminal Procedure (Cr.P.C), which prescribes the compulsory medical examination of the victim. Additionally, the admissibility and probative value of such evidence are governed by the Qanun-e-Shahadat Order, 1984 (Articles 59 and 164). However, in the instant case, the prosecution has failed to produce the requisite medical evidence, thereby undermining the evidentiary foundation of the allegations.

14. The acquittal of co-accused Mst. Zaibul-Nisa and Sadaqat Hussain Shah by the learned trial court warrants a critical reassessment of the prosecution's case, particularly in light of the victim's specific allegations against them. The victim categorically stated that Mst. Zaibul-Nisa played an active role in the alleged kidnapping by luring her under the pretext of seeking help for shifting household items and was physically present, seated in the vehicle at the time of the incident. Despite these direct allegations, the trial court acquitted her based on the same set of evidence that has been used to prosecute the present appellant. This differential treatment of co-accused persons raises serious questions regarding the consistency and reliability of the prosecution's case if the evidence was insufficient to establish Mst. Zibil-Nisa and Sadaqat Hussain Shah's culpability despite the victim's explicit accusation, the very foundation of the prosecution's case against the appellant, becomes inherently weak. Admittedly the prosecution has not filed an appeal against acquitted accused. The principle of judicial parity demands that similarly situated accused persons should not be treated disparately unless there exist compelling distinguishing factors. Once prosecution witnesses were disbelieved concerning a co-accused, then they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. In the case of Pervaiz Khan and another v. The State (2022 SCMR 393) the Supreme Court of Pakistan acquitted two accused on the ground that the prosecution case was disbelieved qua three accused who the trail court has acquitted and their acquittal remained unchallenged, hence benefit of doubt was extended to the rest of accused. In another case, Abdul Ghafoor v. The State (2022 SCMR 1527) and Sajjad Hussain v. The State (2022 SCMR 1540), in similar circumstances, the Supreme Court of Pakistan extended the benefit of the doubt to the appellant(s).

15. The burden of proof rests on the prosecution to establish its case beyond a reasonable doubt. If the prosecution fails to do so, the accused person is entitled to the benefit of the doubt. It is well-established that even a single circumstance that raises doubt in a reasonable person's mind is enough. A fundamental principle of law is that when there is uncertainty, the accused should be granted the benefit as a matter of right, not as a favour. In the case of Muhammad Mansha v. The State (2018 SCMR 772), the Hon'ble Supreme Court of Pakistan observed in paragraph No.4:

"4... Needles to mention that while giving the benefit of doubt to an aceused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates 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. It is based on the maxim, "it is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)..."

2025 P Cr. L J 1578

[Islamabad]

Before Muhammad Asif, J

Syed Kareem-ud-Din---Petitioner

Versus

Senior Superintendent of Police (SSP), Islamabad and 2 others---Respondents

Writ Petition No. 1325 of 2025, decided on 6th May, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A ---Powers of Justice of Peace under S.22-A, Cr.P.C.---Scope---Petition filed under S.22-A, Cr.P.C, by the petitioner for the registration of criminal case was dismissed by the Ex-officio Justice of Peace---Perusal of the record revealed that on 11.12.2024, while the petitioner was at home with his family, a woman contacted him requesting mushrooms for medicinal purposes---Petitioner responded that the product could be collected from his residence---Later that evening, at about 8:00 pm, six to seven individuals, some of whom were Police Officials, arrived in three vehicles and surrounded the petitioner's house---Without presenting a warrant, they forcibly entered the premises, threatened the petitioner, confiscated his personal belongings and proceeded to unlawfully arrest and detain him---Petitioner was taken to Police Station, where he was subjected to severe humiliation, harassment and unlawful confinement for nearly three and a half hours---During such illegal detention, the petitioner was mentally tortured and subjected to interrogation without any legal basis---Officials demanded access to his mobile phone, property details and other personal information---Upon the refusal of petitioner, they adopted a hostile, arrogant, and abusive demeanour, which reflected a gross misuse of authority and a blatant dereliction of official duty---Petitioner filed an application for registration of FIR against the corrupters/perpetrators before the Police Authorities, which was turned down---Petitioner, being dissatisfied with the decision of the Police Authorities, filed an application under Ss. 22-A & 22-B,Cr.P.C., before the Trial Court, which was also dismissed with the reasoning that no cognizable offence had been made out---Validity---In the present case, it was admitted fact that the petitioner was taken into illegal custody by the police without any warrant of arrest and nothing had been recovered from his possession, which showed that the petitioner was not doing any illegal business of narcotics---Actions of the police raised serious concern about whether they possessed the authority to arrest individuals based solely on incorrect information and whether they had ample powers to tarnish the reputation of a respectable citizen in society---Police report submitted before the Trial Court clearly showed that the petitioner was arrested and detained for three hours at Police Station, even though no case was against him---Police report further stated that no unlawful act on the part of the petitioner was found and he was released after making entry of Rapt No. 30 dated 12.11.2024 in the register---Said report itself constituted an admission by the Police Officials of the petitioner's illegal detention, demonstrating that they misused their authority to harass, humiliate, threaten and unlawfully detained him to obtain an unlawful advantage---Admitted fact that the petitioner was wrongfully detained by the police, which was a gross violation of fundamental rights as guaranteed by the Constitution---Police Officer unlawfully confined an innocent citizen in the lock-up of the police station, demonstrating blatant abuse of authority and disregard for the rule of law---Such conduct was wholly unacceptable and could not be justified or overlooked---Law enforcement agencies were duty-bound to uphold the law and respect the constitutional rights of citizens---Respondent, being a Police Official, acted beyond the bounds of legal authority by depriving a citizen of liberty without due process---Therefore, a malicious act on the part of the Police Official could not be brushed aside---Petition was allowed and SHO concerned was directed to register FIR against the proposed accused persons---Petition was allowed, in circumstances.

Badar v. Azmat Bashir 2011 SCMR 1420 rel.

Muhammad Altaf Ahmed for Petitioner.

Ms. Sumaira Khursheed, State Counsel with Zameer-ul-Hassan, ASI, P.S. Ramna, Islamabad.

Order

Muhammad Asif, J.---Through instant petition, the petitioner has impugned the Order dated 16.01.2025 ("Impugned Order") passed by the Additional Sessions Judge, Islamabad-West ("the trial Court"), whereby the application under Section 22-A Cr.P.C. filed by the petitioner was dismissed.

1. The learned counsel for the petitioner contended that the impugned Order passed by the trial court is not a speaking order and is entirely unlawful, arbitrary, contrary to the facts of the case, and reflects a poor understanding of the law. He argued that the trial Court's duty was limited to examining whether the information presented disclosed the commission of a cognizable offence. If so, the only proper course was to direct the concerned SHO to register an FIR. While deciding an application under Sections 22-A and 22-B Cr.P.C., the trial Court could only assess whether the information disclosed a cognizable offence; it was not within the Court's jurisdiction to delve into the truthfulness of the information. He further submitted that the trial Court has failed to appreciate the mandatory provision of Section 154 Cr.P.C., which obliges the SHO to register an FIR if the information reveals the commission of a cognizable offence, regardless of its veracity. The trial court overlooked the scheme of the Criminal Procedure Code, which does not permit the SHO or the Investigating Officer to conduct a preliminary inquiry into the truthfulness of the complaint before registering a case under Section 154 Cr.P.C. He emphasized that if a bare reading of the complaint discloses the commission of a cognizable offence, the SHO is legally bound to enter the same into Register No. 1 without holding any prior inquiry. Therefore, the petition may be allowed.

2. The learned State counsel repelled the above submission and argued that the Order impugned by the petitioner is a well-reasoned Order, and the SSP, Islamabad, has also submitted his report in the instant matter. As per the report, no cognizable offence has been made out, therefore, the petitioner is liable to be dismissed.

3. Arguments heard, record perused.

4. A perusal of the record reveals that the petitioner is engaged in providing therapeutic treatment for conditions such as depression, mental disorders, and psychological issues using mushrooms. The petitioner's company, Mystical Fungi Flora (Pvt.) Ltd., is duly registered with the Securities and Exchange Commission of Pakistan (SECP). The petitioner has also maintained official records with all relevant regulatory and functional authorities of the State, including the Anti-Narcotics Force (ANF), the Ministry of Narcotics Control, the Drug Regulatory Authority of Pakistan (DRAP), and the Pakistan Council of Scientific and Industrial Research (PCSIR), also known as the Council of National Scientific and Industrial Research (CNSIR). The petitioner has repeatedly approached the competent authorities through written correspondence, requesting the issuance of a license. However, the responses received indicated that there is no established procedure for such licensing in Pakistan, nor is the petitioner's activity explicitly prohibited, banned, or declared illegal under any prevailing law.

5. On 11.12.2024, while the petitioner was at home with his family, a woman contacted him requesting mushrooms for medicinal purposes. The petitioner responded that the product could be collected from his residence. Later that evening, at about 8:00 pm, six to seven individuals, some of whom were police officials, arrived in three vehicles and surrounded the petitioner's house. Without presenting a warrant, they forcibly entered the premises, threatened the petitioner, confiscated his personal belongings, and proceeded to unlawfully arrest and detain him. He was taken to Golra Sharif Police Station, where he was subjected to severe humiliation, harassment, and unlawful confinement for nearly three and a half hours. During this illegal detention, the petitioner was mentally tortured and subjected to interrogation without any legal basis. The officials demanded access to his mobile phone, property details, and other personal information. Upon his refusal, they adopted a hostile, arrogant, and abusive demeanour, which reflects a gross misuse of authority and a blatant dereliction of official duty.

6. The petitioner filed an application for registration of FIR against the corrupters/perpetrators before the Respondent No. 1 and 2, which was turned down. The petitioner, being dissatisfied with the decision of the respondents, filed an application under Sections 22-A & 22-B Cr.P.C. before the learned trial Court, which was also dismissed with the reasoning that no cognizable offence has been made out.

7. Whenever a Justice of the Peace is seized of a complaint under Section 22-A of the Cr.P.C., the principles and procedures outlined in Section 154 of the Cr.P.C. become applicable. The Justice of the Peace must exercise a prudent mind to determine whether the facts disclosed constitute a cognizable offence. If it is concluded that a cognizable offence has been committed, the Justice of the Peace is bound to direct the local police of the concerned station within whose jurisdiction the offence occurred to register the case by lodging an FIR under the relevant provisions of law applicable to the facts of the case.

8. In light of Section 154 Cr.P.C., the Officer Incharge of a police station is legally bound to record information regarding a cognizable offence in the prescribed register, previously known as the First Information Report (FIR). The mere registration of an FIR does not, in any manner, limit the authority of the investigating officer to probe the veracity of the information provided. If, during the investigation, the officer concludes that the allegations against the accused are false, concocted, or baseless, and no supporting evidence is found, the officer may lawfully recommend the release of the accused under Section 169 Cr.P.C. and place the accused's name in Column No. 2 of the final report submitted under Section 173 Cr.P.C., thereby suggesting discharge from the charges. However, it must be emphasized that neither the Officer In-charge nor any other authority has the discretion to refuse to reduce into writing any information relating to the commission of a cognizable offence in the register maintained under Section 154 Cr.P.C.

9. In the present case, it is an admitted fact that the petitioner was taken into illegal custody by the police without any warrant of arrest, and nothing has been recovered from his possession, which shows that the petitioner was doing any illegal business of narcotics. The actions of the police raise serious concerns about whether they possess the authority to arrest individuals based solely on incorrect information, and whether they have ample powers to tarnish the reputation of a respectable citizen in society.

10. The police report submitted before the learned trial court clearly shows that the petitioner was arrested and detained for three hours at Golra Police Station, even though no case was against him. It further states that, upon finding no unlawful act on the part of the petitioner was found and he was released after making entry of Rapt No. 30 dated 12.11.2024 in the register. This report itself constitutes an admission by the police officials of the petitioner's illegal detention, demonstrating that they misused their authority to harass, humiliate, threaten, and unlawfully detained him to obtain an unlawful advantage.

2025 P Cr. L J 1611

[Islamabad]

Before Mohsin Akhtar Kayani, J

Syed Qalb-e-Abbas---Appellant

Versus

The State through SHO, PS CTW-FIA, Islamabad and another---Respondents

Criminal Appeal No. 351 of 2024, decided on 1st August, 2025.

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

----S. 409---Official Secrets Act (XIX of 1923), Ss. 3 & 4---Criminal breach of trust by public servant, communication with foreign agents to be evidence of commission of certain offences---Appreciation of evidence---Benefit of doubt---Infirmities in prosecution evidence---Accused was charged for communicating secret information to a foreign diplomat/agent, prejudicial to a safety and security of the State---Perusal of the record reflected that the appellant was apprehended by complainant based on spy information, with the allegation that the appellant, being an official of the Government of Pakistan, was meeting a foreign agent---Consequently, a raiding team was constituted on 15.02.2021, pursuant to the secret information---Raid was conducted behind the petrol pump, where the appellant was reportedly dropped off from a white Land Cruiser, allegedly driven by the foreign agent---However, during cross-examination, complainant did not mention the mobile number of the appellant in his examination-in-chief---Furthermore, complainant failed to produce any copy of the Roznamcha report indicating his departure from the police station after receiving the spy information---Complainant also did not provide details of the raiding team through any entry in the Roznamcha and was unable to confirm the make and model of the Land Cruiser, allegedly driven by the foreign agent and admitted that no site plan was prepared---While acknowledging that the front windscreen of the vehicle was not tinted, he claimed that the remaining windows were tinted, yet he failed to describe the physical features or facial characteristics of the alleged foreign agent or the country of origin of such agent---Communication of sensitive information had not been substantiated by complainant---Mode and manner of transmission of the sensitive information were neither mentioned in the complaint nor in his examination-in-chief---Complainant also admitted that no seizure memo (recovery memo) was prepared by him, and further conceded that neither he nor his officials made any serious attempt to stop or intercept the Land Cruiser allegedly driven by the foreign agent---Investigating Officer essentially reiterated the version of complainant---However, examination-in-chief of said witness was also silent regarding the recovery of the memory card, USB, CNIC, service card, arms license, ATM card, mobile phone, keys, registration book, and other documents allegedly recovered at the time of arrest from appellant---None of them were exhibited during trial---When material was neither produced nor exhibited, it would be presumed that it did not exist at all---Appeal against conviction was allowed, in circumstances.

Ahmed Ali v. State 2023 SCMR 181 and Shakeel Ahmed v. The State 2023 MLD 2014 rel.

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

----S. 409---Official Secrets Act (XIX of 1923), Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 164---Criminal breach of trust by public servant, communication with foreign agents to be evidence of commission of certain offences---Appreciation of evidence---Benefit of doubt--- Confessional statement of accused, recording of---Infirmities---Accused was charged for communicating secret information to a foreign diplomat/agent, prejudicial to the safety and security of the State---As per the Investigating Officer, the appellant was produced before the concerned Court on 16.02.2021 for physical remand---However, the appellant was sent to judicial custody on 18.02.2021 after recording of a confessional statement under S.164,Cr.P.C.---No explanation was offered as to why the appellant was not sent to judicial custody prior to the recording of his confessional statement, which omission indicated the non-voluntariness of confessional statement under S.164, Cr.P.C.---Admitted fact that the confessional statement of the accused was not recorded in the language in which it was originally made, thereby breaching a mandatory legal requirement stipulated under S.364(1) of the Code of Criminal Procedure and Rule 11, Chapter 13 of the High Court (Lahore) Rules and Orders---Appeal against conviction was allowed, in circumstances.

Muhammad Yar v. The State 2001 MLD 807 and The State v. Ahmed Omer Sheikh and others 2021 SCMR 873 rel.

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

----S. 409---Official Secrets Act (XIX of 1923), Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 103---Criminal breach of trust by public servant, communication with foreign agents to be evidence of commission of certain offences---Appreciation of evidence---Non-association of private witnesses at the time of arrest of accused---Serious lapse---Accused was charged for communicating secret information to a foreign diplomat/agent, prejudicial to the safety and security of the State---Investigating Officer admitted that no private person was associated as an independent witness during the proceedings concerning either the arrest of the accused or the recovery of items---Investigating Officer was also unable to recall the exact time when the recovery memo was prepared---In terms of S.103 of the Cr.P.C., the law mandated the two or more inhabitants of the locality must be associated during search and recovery proceedings to ensure fairness and eliminate doubts---Failure to associate any private witness from the locality constituted a serious legal lapse---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail v. The State 2017 SCMR 898 rel.

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

----S. 409---Official Secrets Act (XIX of 1923), Ss. 3 & 4---Criminal breach of trust by public servant, communication with foreign agents to be evidence of commission of certain offences---Appreciation of evidence---Benefit of doubt---Recovery proceedings---Presumption of tampering---Accused was charged for communicating secret information to a foreign diplomat/agent, prejudicial to the safety and security of the State---Record showed that no mobile number was taken into possession from the accused---Recovery memo did not mention whether the articles were sealed or marked with any official seal or insignia---Non-sealing of the recovered items undermines sanctity of the entire recovery process because the adverse presumption of tampering gets attached to the recovery---Purpose behind immediate sealing was to avoid evidence contamination or tampering with the evidence---Such major defect was fatal for the recovery proceedings and same could not be relied upon---Appeal against conviction was allowed, in circumstances.

Khan Bacha v. The State PLD 2006 Kar. 698 rel.

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

----Ss. 3 & 4---Offence under the Official Secrets Act, 1923---Electronic communication---Proof---Electronic communication must be substantiated by forensic or telecom records, including Call Data Record (CDR) and GPS data, especially in cases involving allegations under the Official Secrets Act, 1923---Failure to secure such essential records renders the entire investigation incomplete and unreliable.

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

----S. 409---Official Secrets Act (XIX of 1923), Ss. 3 & 4---Criminal breach of trust by public servant, communication with foreign agents to be evidence of commission of certain offences---Appreciation of evidence---Benefit of doubt---Digital Forensic Analysis Report---Integrity of data compromised---Onward transmission of data not proved---Accused was charged for communicating secret information to a foreign diplomat/agent, prejudicial to the safety and security of the State---Digital Forensic Analysis Report submitted by the Cybercrime Wing, prepared by the Forensic Expert, stated that he received three devices, one mobile phone and two USBs for forensic analysis and submitted a report---Forensic Expert conceded that his statement under S.161,Cr.P.C., was not reduced into writing---Saidwitness did not refer to a single instance from which it could be presumed, on the basis of the forensic analysis, that any data had been transferred to any recipient or to whom it was allegedly sent---Said witness further stated that such determination was not within the scope of forensic analysis and also admitted that he did not mention the cell number (or SIM number) in the digital analysis report, a key factor required to establish the connection between the appellant and the recovered mobile phone---Said witness also conceded that the documents retrieved were not verified from the Ministry of Foreign Affairs---In view of these admissions by the forensic expert, the second prosecution witness, deposed that he received two USB devices on 16.02.2021 and one mobile phone on 18.02.2021, allegedly recovered from the accused, for the purposes of extracting secret documents from these devices---However, the timeline indicated that those recovered devices were neither immediately forwarded to the forensic expert nor were they sealed at the time of recovery---Such omissions led to the irresistible conclusion that the digital evidence/data referred to by the Forensic Expert could not be treated as primary evidence, particularly when its integrity was demonstrably compromised and its transmission/communication to someone (foreign agent in this case) was also not proved through the forensic report---Deposition given by the forensic witnesses during cross-examination did not fulfill the essential principles of admissibility of digital evidence enshrined in the Qanun-e-Shahadat 1984, including the origin, copying, originality, communication, transmission etc. thereby collapsing the entire edifice of the prosecution's case against the appellant---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---If a doubt has arisen on record, the accused will be entitled to such benefit as a matter of right and not as a matter of grace.

Muhammad Ilyas v. State 1997 SCMR 25 and Tariq Parvez v. State 1995 SCMR 1345 rel.

Hassan Rashid Qamar along with Appellant.

Usman Rasool Ghumman, A.A.G, Jawad Hussain Aadil, Special Prosecutor, FIA and Rana Abdul Malik, Special Prosecutor, FIA for Respondents.

Date of hearing: 24th July, 2025.

Judgment

Mohsin Akhtar Kayani, J.---Through the instant appeal, the appellant has assailed the judgment dated 30.09.2024 passed by the Special Court (Official Secrets), Islamabad, in case FIR No.03/2021 dated 15.02.2021, registered under Sections 3 and 4 of the Official Secrets Act, 1923 read with Section 409 P.P.C., at Police Station CTW, FIA, Islamabad. Through the impugned judgment, the appellant has been convicted and sentenced to three years' rigorous imprisonment under Section 3(3) of the Official Secrets Act, 1923, with the benefit of Section 382-B Cr.PC.

1. The brief facts referred in the instant case are that the complainant, Ijaz Ahmed Sheikh, Additional Director, FIA CTW (PW-07), lodged a complaint (Exh.PR) stating that on 15.02.2021, while posted as in-charge at PS FIA CTW, he received information from credible sources about a secret meeting between a foreign diplomat/agent and Syed Qalb e Abbas (the accused/appellant), who was then serving as President and an employee in the Ministry of Planning and Special Initiatives, Islamabad. The meeting was allegedly intended for the communication of secret information prejudicial to the safety and security of the State.

2. Acting upon this information, the complainant constituted a raiding party and proceeded to the designated location behind the PSO petrol pump at G-8 Markaz, Islamabad. The source informed him to wait as the suspect had momentarily left in a white Land Cruiser, bearing registration number QM-162, with tinted windows.

3. Upon the vehicle's return, the appellant was dropped off in the parking area in front of UBL Bank, G-8 Markaz, Islamabad. As he attempted to approach his parked black Honda car, Registration No.AJQ-301, he was intercepted and apprehended by the complainant and his team.

4. According to Ejaz Ahmed Sheikh, PW-07, the appellant failed to offer any plausible explanation regarding the purpose of his meeting. A personal search was conducted, which led to the recovery of the following items: a memory card, USB, cash amounting to Rs.110,000, CNIC, service card, arms license, ATM card, mobile phone, keys, vehicle registration book, driving license, and other miscellaneous items.

5. The complaint was transmitted to the police station through PW-04, Constable Abdul Manan, and upon submission, FIR No.03 dated 15.02.2021 was registered accordingly.

6. The investigation was entrusted to Inspector Muhammad Noman (PW-08), who issued various letters to the Ministry of Foreign Affairs and the Ministry of Planning and Special Initiatives to verify the appellant's credentials. He submitted the recovered USBs and mobile phone for forensic analysis, recorded the statements of witnesses, verified vehicle registration No. QM-162 from the Excise and Taxation Office, Islamabad, and after receiving the forensic report, submitted the challan under Section 173 Cr.P.C before the Court.

7. The trial Court framed the charge on 28.05.2021 under Sections 3 and 4 of the Official Secrets Act, 1923, read with Section 409 P.P.C., to which the appellant pleaded not guilty. The prosecution examined 12 witnesses (PWs) and one Court witness (CW). The statement of the appellant was recorded under Section 342 Cr.P.C, after which the Court convicted him and awarded a sentence of 03 years' rigorous imprisonment under Section 3 of the Official Secrets Act, 1923. Hence, this appeal.

8. Learned counsel for the appellant submits that the trial Court has failed to properly appreciate the legal requirements regarding the search and seizure of the allegedly incriminating material. It is argued that the appellant was posted on the China Desk at the Ministry of Foreign Affairs, while performing his official duties, he was unlawfully abducted by the law enforcement agencies about a month prior to the registration of the instant FIR. The appellant was subjected to enforced disappearance, upon which his wife, Ms. Huma Abbas, filed a Writ Petition bearing No. 146/2021, and an FIR under Section 365 P.P.C. was also lodged. After nearly 25 days of illegal confinement, the appellant was recovered and released and later on falsely implicated by FIA CTW in this case under fabricated allegations.

9. It is further submitted that the appellant never met any foreign agent, nor did he communicate any secret or confidential information. No evidence of such communication and sharing of information has been produced. The identity of the alleged foreign agent was never disclosed nor verified during the investigation.

10. Learned counsel for the appellant indicated more flaws in the investigation and asserted that the three main allegedly recovered items including mobile phone, USB, and SIM were not produced or exhibited during trial. Even the bag from which the amount of Rs.110,000 was allegedly recovered was also not exhibited as a piece of evidence. The statement of appellant under Section 164 Cr.P.C was recorded on the third day of the appellant's arrest, and he was not remanded to judicial custody prior to such recording, which raises serious questions about the voluntariness of the statement. It is further contended that there are glaring contradictions and inconsistencies among the statements of the prosecution witnesses, which render the prosecution case doubtful and fabricated.

11. Conversely, the learned Special Prosecutor F.I.A opposed the contentions raised by the appellant's counsel. He submits that the appellant was found in possession of multiple classified documents. The digital forensic report confirmed the presence of confidential material in the recovered mobile phone and SIM, and the report was duly exhibited on record and corroborated by Muhammad Sibtain Ahmed Khan, Additional Director (Forensics), CW-01. Hence, according to the prosecution, the appellant's conviction is well-founded, and no doubt arises regarding his guilt.

12. Arguments heard. Record perused.

13. Perusal of the record reflects that the appellant was apprehended by Ijaz Ahmed Sheikh (PW-07), Additional Director, FIA CTW Islamabad, based on spy information, with the allegation that the appellant, being an official of the Government of Pakistan, was meeting a foreign agent. Consequently, a raiding team was constituted on 15.02.2021, pursuant to the secret information.

14. The raid was conducted behind the PSO petrol pump located at G-8 Markaz, Islamabad, where the appellant was reportedly dropped off from a white Land Cruiser bearing registration No.QM-162, allegedly driven by the foreign agent. However, during cross-examination, PW-07 did not mention the mobile number of the appellant in his examination-in-chief. Furthermore, he failed to produce any copy of the Roznamcha report indicating his departure from the police station after receiving the spy information.

15. PW-07 also did not provide details of the raiding team through any entry in the Roznamcha. He was unable to confirm the make and model of the Land Cruiser, allegedly driven by the foreign agent, and admitted that no site plan was prepared. While acknowledging that the front windscreen of the vehicle was not tinted, he claimed that the remaining windows were tinted, yet he failed to describe the physical features or facial characteristics of the alleged foreign agent or the country of origin of such agent.

16. The most crucial aspect of the case was the communication of sensitive information which has not been substantiated by PW-07. The mode and manner of transmission of the sensitive information are neither mentioned in the complaint nor in his examination-in-chief.

17. PW-07 also admitted that no seizure memo (recovery memo) was prepared by him, and further conceded that neither he nor his officials made any serious attempt to stop or intercept the Land Cruiser allegedly driven by the foreign agent.

18. The investigation was conducted by Muhammad Noman (PW-8), Inspector, FIA CTW, who essentially reiterated the version of PW-7. However, his examination-in-chief is also silent regarding the recovery of the memory card, USB, CNIC, service card, arms license, ATM card, mobile phone, keys, registration book, and other documents allegedly recovered at the time of arrest from appellant. None of them were exhibited during trial. Now it is settled position of law that when material is neither produced nor exhibited, it would be presumed that it does not exist at all as held in 2023 SCMR 181 (Ahmed Ali v. State).

19. As per the Investigating Officer, the appellant was produced before the concerned Court on 16.02.2021 for physical remand. However, the appellant was sent to judicial custody on 18.02.2021 after recording of a confessional statement under Section 164 Cr.P.C. No explanation was offered as to why the appellant was not sent to judicial custody prior to the recording of such statement, this omission indicates the non-voluntariness of confessional statement under Section 164 Cr.P.C. It is also an admitted fact that the confessional statement of the petitioner was not recorded in the language in which it was originally made, thereby breaching a mandatory legal requirement as stipulated under Section 364(1) of the Code of Criminal Procedure and Rule 11, Chapter 13 of the Lahore High Court Rules as held in MLD 2001 [Lahore] 807 (Muhammad Yar v. The State), that a "confessional statement shall be recorded in actual words". The parameters to record confessional / voluntary statement under section 164 Cr.P.C. before the Magistrate are enlisted in detail in 2021 SCMR 873 (The State v. Ahmer Omer Sheikh and others), which have not been observed.

20. PW-08 admitted that he had addressed multiple letters to various ministries including the Ministry of Foreign Affairs for verification of the credentials and documents of the appellant. As per forensic report Exh.PL and Exh.PM, a reply was received confirming that the documents recovered during analysis were classified as confidential and secret.

21. It is further stated by PW-8 that the vehicle used by the foreign agent, i.e., QM-162, was verified through the Excise and Taxation Office (ETO) Exh.PK, which confirmed that the said registration number was actually allotted to a Mitsubishi Lancer car, not to a Land Cruiser. However, no documentary proof was provided under any law to justify the use of temporary or fake number plates by diplomatic vehicles.

22. During cross-examination, PW-08 conceded that he did not make any entry in the daily Roznamcha regarding his movement in connection with the raid. Whereas, under Police Rules, 1934, it is mandatory for every police official to record the entry of their movement in daily diary and its non-production causes serious doubts in prosecution case as held by Division Bench of Peshawar High Court in judgment reported as 2023 MLD 2014 (Shakeel Ahmed v. The State). He further admitted that he could not verify whether the front screen of the Land Cruiser was damaged or tinted. Neither did he take possession of the said vehicle, nor any site plan was prepared. As per Exh.PK, the vehicle was a black Mitsubishi model 2013, bearing altered registration number QM-162.

23. The I.O also admitted that no private person was associated as an independent witness during the proceedings concerning either the arrest of the accused or the recovery of items. He was also unable to recall the exact time when the recovery memo (Exh.PA) was prepared. In terms of Section 103 of the Cr.P.C., the law mandates the two or more inhabitants of the locality must be associated during search and recovery proceedings, to ensure fairness and eliminate doubts. The failure to associate any private witness from the locality constitutes a serious legal lapse. The Hon'ble Supreme Court in 2017 SCMR 898 (Muhammad Ismail v. The State) has categorically held that failure to associate independent witness of the locality casts doubt on the credibility of the alleged recovery.

24. He further confirmed that no mobile number was taken into possession from the accused. The most critical flaw in the recovery process is that the recovery memo does not mention whether the articles were sealed or marked with any official seal or insignia. Non-sealing of the recovered items undermines sanctity of the entire recovery process because the adverse presumption of tempering gets attached to the recovery. The only purpose behind immediate sealing is to avoid evidence contamination or tampering with the evidence. This major defect is fatal in the light of law laid down in the case reported as PLD 2006 [Karachi] 698 (Khan Bacha v. The State) where it was held that failure to seal and secure recovered items raises serious doubts about the recovery proceedings and cannot be relied upon.

25. The I.O further failed to verify the origin or nationality of the alleged foreign agent. The complaint and FIR are completely silent on this crucial aspect as well. Not even a single letter was addressed to the Ministry of Foreign Affairs for initiating proceedings or verification of the said foreign agent.

26. The other most crucial aspect of the case is the communication of sensitive information, which remained unsubstantiated. The I.O candidly admitted that the complaint and FIR, are silent regarding the mode and manner of the alleged transfer of such sensitive information from the accused to the foreign agent. He also conceded that he is not aware of the address or identity of the foreign agent.

27. In a case where the main allegation pertains to the communication of sensitive information, it becomes crucial for investigation officer to establish the telephonic or electronic communication took place between the accused and the alleged foreign agent through the Call Data Record (CDR) of the accused, or verify the location, which are missing in this case.

28. The Investigating Officer admitted that no CDR of the accused was obtained, nor was any request made to the mobile service provider to obtain call logs, messages, or tower location data, particularly for the date of occurrence, i.e., 15.02.2021.

29. In the absence of such records, the prosecution has failed to establish any electronic link between the appellant and the alleged foreign agent. No effort was made to verify the location of the accused through his mobile phone data to place him at the scene of the alleged meeting.

30. It is now well settled that electronic communication must be substantiated by forensic or telecom records, including CDR and GPS data, especially in cases involving allegations under the Official Secrets Act. The failure to secure such essential records renders the entire investigation incomplete and unreliable.

31. In view of the above discussion and the evidence brought on record, the following admitted facts emerge:

i. The appellant, Syed Qalb e Abbas was abducted by unknown individuals on 12.01.2021. A criminal case was registered at Police Station Sabzi Mandi on the complaint of the appellant's brother.

ii. It is alleged that on 10.01.2021, at around 5:45 p.m., the appellant was traveling in his Honda City vehicle bearing registration number AJQ-301 when he went missing.

iii. Subsequently, the appellant's wife, Syeda Huma Abbas, filed Writ Petition No.146 of 2021 before the Islamabad High Court, which was disposed of by the then Honourable Chief Justice upon the return of the appellant on 10.02.2021.

iv. During the period of his disappearance, the appellant remained in illegal detention of unknown individuals. He claimed that his disappearance amounted to an enforced disappearance by state agencies.

v. The appellant was apprehended by the FIA on 15.02.2021, as noted in his statement under Section 342 Cr.P.C., through one Faisal, a person allegedly introduced to him during his illegal detention.

vi. The appellant was charged under Sections 3 and 4 of the Official Secrets Act, 1923, on the allegation that he had met with a foreign agent and had transmitted/communicated official information of a confidential and secret nature.

vii. The identity of the alleged foreign agent was never investigated by the Investigating Officer (IO) nor known till date.

viii. It was claimed that the appellant was apprehended by FIA after being deboarded from a white Land Cruiser bearing registration number QM-162, near the PSO Petrol Pump, G-8, Islamabad. However, this vehicle was never verified. The Excise and Taxation Office confirmed that the said registration number was allotted to a Mitsubishi car, as verified by the prosecution's own evidence.

ix. No direct evidence was produced by the prosecution to show that any confidential or secret information was actually communicated to a foreign agent.

x. The raiding team that intercepted and apprehended the appellant did not produce the blue plastic bag allegedly containing Rs.110,000 cash.

xi. The IO also failed to produce or exhibit in the court, the three pieces of alleged technical evidence, namely:

· A mobile phone (Galaxy A71), · A 4 GB Kingston USB flash drive, and

· A Play Station USB.

xii. The appellant's statement under Section 164 Cr.P.C. was recorded on the third day of his physical remand, without first sending him to judicial custody.

xiii. No register (No.19 or No.21) of the concerned police station was produced to establish the safe custody of the allegedly recovered mobile phone and USB devices.

xiv. The IO admitted that the USB and mobile phone were never sealed at the time of recovery, nor was any identification mark affixed to them.

xv. No record was produced to show that the data allegedly recovered caused any prejudice to the national security of Pakistan or conferred any benefit to an enemy state.

xvi. There was no office order, directive, or legal notification presented to establish that the recovered data had ever been classified as secret, confidential, or top secret by any competent authority.

xvii. No official witnesses, such as the Director General of Human Resources or any official from the Ministry of Foreign Affairs (MOFA), were produced in Court to verify the nature of the documents.

xviii. The appellant had already been repatriated to his parent Ministry of Planning and Special Initiatives from the Ministry of Foreign Affairs well before the alleged incident.

xix. No Call Data Record (CDR) was collected by the IO to confirm the appellant's presence at the alleged place of arrest or any meeting with a foreign agent.

1. Keeping in view the above investigation flaws, it has been established that on the basis of mere allegations not supported by substantial or circumstantial evidence, conviction cannot be sustained. As per Article 117 of the Qanun-e-Shahadat Order, 1984, the burden of proof lies with the prosecution. Under the Official Secrets Act, 1923, the prosecution is obligated to prove the delivery of secret information through direct evidence, which may include:

· Eye-witness accounts of the alleged transmission of secret information;

· Documentary evidence such as emails, letters, or memos showing transmission of classified material;

· Circumstantial evidence reflecting a consistent pattern of behaviour that supports the allegation;

· Digital footprints, including logs of access to digital files or email correspondence involving classified content;

· Forensic analysis of devices used by the accused, like USB drives or mobile phones;

· Surveillance evidence such as CCTV footage or intercepted communications with foreign agents;

· Intelligence reports from law enforcement or intelligence agencies; and

· Expert testimony from cyber security or cryptography professionals.

1. Even in cases involving national security, the law demands a minimum threshold of evidence. The absence of any technical or corroborative proof in this matter undermines the prosecution's case. To establish guilt under the Official Secrets Act, the prosecution must also prove:

· That the transmitted information was officially classified and protected under law;

· That the accused had access to such classified material;

· That the accused intentionally communicated such information to an unauthorized person, knowing it to be classified.

1. The classification status of such information must be proven through a competent authority, who should be produced as a witness to demonstrate that the documents / information were marked as confidential, secret, or top secret, and that unauthorized access to such documents is illegal.

2. Furthermore, classification protocols, secure transmission procedures, and document handling regulations should also be framed to demonstrate procedural lapses.

3. Although the appellant previously served on the China Desk in MOFA dealing with CPEC matters, he had already been transferred to his parent Ministry vide notification dated 28.09.2020 after the repatriation from Ministry of Foreign Affairs vide Notification dated 07.09.2020, prior to the alleged incident. No mobile number allegedly used by the appellant was confirmed through telecom records by the I.O. Mere recovery of old official data from mobile device of accused which he possessed by virtue of the position he was holding, cannot form the basis of conviction under the Official Secrets Act, 1923, especially when:

· The accused is no longer in a position of access to classified information;

· The identity of the alleged foreign agent remains unverified;

· The vehicle from which the appellant was allegedly deboarded (QM-162) is unverified, rather registration received reflects Mitsubishi vehicle car.

1. The prosecution was unable to establish any mensrea or criminal intent of the appellant through direct or circumstantial evidence, including behaviour, background, or conduct indicating deliberate disclosure of secret information.

2. I have also attended to the Digital Forensic Analysis Report submitted by the Cybercrime Wing, marked as Exh.CW-1/76, prepared by the forensic expert Mohammad Sibtain Ahmed Khan, Assistant Director (Forensics), who appeared as CW-01 in this case. He stated that he received three devices one mobile phone and two USBs for forensic analysis, and submitted a report comprising 77 pages and he conceded that his statement under Section 161 Cr.P.C. was not reduced into writing and his report comprised of three pages only annexed as Exh.PW3, Exh.PW4, and Exh.PW5 out of the total 77 pages. While the remaining pages comprised of, data retrieved from the devices. He did not refer to a single instance from which it could be presumed, on the basis of the forensic analysis, that any data had been transferred to any recipient or to whom it was allegedly sent.

3. He further stated that such determination was not within the scope of forensic analysis. CW-01 also admitted that he did not mention the cell number (or SIM number) in the digital analysis report a key factor required to establish the connection between the appellant and the recovered mobile phone. He also conceded that it is correct to say that the documents retrieved were not verified from the Ministry of Foreign Affairs (MOFA).

4. In view of these admissions by the forensic expert, the second prosecution witness, PW-03 Masood Ali, Deputy Director FIA (In-charge Forensics, CCW-FIA), also appeared in the witness box and deposed that he received two USB devices on 16.02.2021 and one mobile phone on 18.02.2021, allegedly recovered from the accused, for the purposes of extracting secret documents from these devices. However, the timeline indicates that these recovered devices were neither immediately forwarded to the forensic expert nor were they sealed at the time of recovery.

5. Turning now to the Digital Forensic Analysis Report (Exh.CW-1/76) from another perspective, specific findings were made in Clause 4.1 of the report, which are as under:

4.1. Facts and Finding of Samsung Mobile Phone A71 in FIR-03/21 CTW

During the course forensic examination of the evidentiary item Mobile phone Samsung bearing IMEI:352639111312681, the data as per scope of the case was searched and the official documents related to MOFA SMS related to MOFA, official Correspondence, china visit, correspondence with china regarding gawader has been identified and extracted and annexed at Flag-C. The investigation officer can identify the facts as per case requirement from extracted data provided in DVD attached. Few detail is annexed at page No.0950.

4.2. Facts and Finding of USB Kingston Silver color in FIR-03/21 CTW

During forensic examination of USB silver color the data as per scope of the case was searched and official documents has been identified and annexed at Flag-D. It is pertinent to mention that the malware was also identified in USB. The detail is annexed at page No.51-70.

4.3. Facts and Finding of USB Kingston Black color in FIR-03/21 CTW

During forensic examination of USB silver color the data as per scope of the case was searched and official documents has been identified. It is pertinent to mention that the malware was also identified in USB and annexed at Flag-E. The detail is annexed at page No.71.

1. A plain reading of this portion, which relates to the three devices forming the primary evidence in this case, shows that certain documents were recovered from the mobile phone and USB drives. In this regard, the Investigation Agency submitted a list identifying ten different documents, of which four were marked as "secret", which is as under:

| | | | | | | --- | --- | --- | --- | --- | | S.No. | Subject | Status | Classification | page | | 1. | Flight Clearance of Chinese PLA Air Force from China on 4 Sept to 19 Sept, 2020 | China Division | Confidential | 12-38 and 41 | | 2. | U.O. Note dated 83-2019 and Draft MoU on Establishing Friendly Cooperation Relationship between the Jiangsu Provincial Public Security Department of the People's Republic of China and the Punjab Police of the Islamic Republic of Pakistan. | China Division | Ordinary | 39 | | 3. | Note Verbale dated 26-6-20 and list of 93 Pakistani professionals working in different Chinese Organizations, Banks, Companies, Universities, and also include legal representatives of Pakistani banks in China and their families. | China Division | Ordinary | 12 35-37 and 44 | | 4. | Fax Message to Prep Guangzhou dated 4th June, 2020 regarding detention of Mr. Asad Muhammad son of Jehangir Muhammad Passport No.AG1876502 arrested in China on Account of drug Smuggling. | China Division | Confidential | 49 | | 5. | MoU between the Ministry of Industry and Information Technology of the People's Republic of China and the Ministry of Information Technology and Telecommunication of the Islamic Republic of Pakistan on Cooperation in Information and Communications Technology. | China Division | Secret | 52 | | 6. | Executive Brief Prime Minister's Visit to China for the Belt and Road Forum 25-28 April, 2019 Beijing | China Division | Court Matter | 53 to 55 | | 7. | Implementation of Order of Supreme Court in Criminal Petition No.299 of 2020 dated 7th April 2020 (Foreign Women Prisoners) | China Division | Secret | 56 | | 8. | First FMs' Strategic Dialogue 17-20 March, 2019, Beijing (TPs) | China Division | Secret | 56 to 59 | | 9. | Tentative Visit Programme/List of Chinese Delegation of Vice Foreign Minister Kong Xuanyou to Pakistan 9-10 December, 2018 | China Division | Secret | 66 to 67 | | 10. | First Round of Pakistan-China Bilateral Political Consultations (Islamabad, 9-10 December 2018) Executive Brief | China Division | Secret | 68 to 70 |

1. The documents marked as "secret" are related to past events, from 2018 and 2019, which had already taken place much before the alleged recovery whereas, the appellant was charged in 2021 after his repatriation from MOFA to his parent department. Thus, the nature of the documents reflect ordinary correspondence consistent with the nature of the appellant's previous official responsibilities. While the documents bear the label "secret" alone cannot establish that they were conveyed or transferred to a foreign agent before or during the timeline of those events.

2. From a technical angle, Clauses 4.2 and 4.3 of the report further state that malware was detected in the USB devices. Malware (short for "malicious software") refers to any code or program intentionally designed to disrupt, damage, or gain unauthorized access to a computer system or network. It includes:

· Viruses, which replicate when opened;

· Worms, which spread without user interaction;

· Trojan horses, which disguise as legitimate software;

· Spyware, which secretly monitors activity;

· Ransomware, which encrypts data for ransom;

· Rootkits and key loggers, which record keystrokes and hide deep within systems.

1. In the context of Pakistan's cyber-related jurisprudence, the presence of malware raises serious concerns about the integrity and reliability of the digital evidence. As per evidentiary principles, the existence of malware may render the contents of a device unreliable, as external non-human agents may have compromised its authenticity beyond the user's control. Where digital evidence is to be relied upon, a certified digital forensic expert such as CW-01 must conduct a forensically sound examination.

2. The forensic report must conform to the standards of expert testimony under Article 59 of the Qanun-e-Shahadat Order, 1984, and must clearly demonstrate the extent of the malware intrusion and its forensic implications. This serves as the basis for determining the evidentiary value of the electronic device.

3. Pursuant to Articles 46-A, 47, and 164 of the Qanun-e-Shahadat Order, 1984, digital evidence must meet the requirements of relevance, authenticity, and reliability to be admissible. If a device is found to be compromised by malware or subjected to unauthorized modification, the Court may declare it inadmissible. This exclusion safeguards procedural fairness and ensures that no tainted or manipulated evidence is relied upon. In such cases, the forensic expert must:

· Establish the timeline of malware intrusion;

· Identify the entry vector (e.g., phishing, USB, remote access);

· Assess the impact on data integrity; and

· Confirm whether the malware altered or fabricated evidence.

1. In the realm of digital forensics, every digital action leaves a trace. Even if files are deleted, traces remain whether on local storage or cloud services, which can be retrieved. In contrast, physical evidence can often be destroyed completely.

2. Under Article 5 of the Electronic Transactions Ordinance, 2002, if digital evidence is complete and unadulterated, it is admissible regardless of minor changes caused by natural or accidental factors. Additionally, Articles 46-A and 73 of the Qanun-e-Shahadat Order, 1984, clarify that only relevant facts and facts in issue are admissible. The explanation appended to Article 73 affirms that electronic documents are primary evidence, and Article 46-A recognizes that digital or mechanically generated evidence is also relevant.

3. Pakistani jurisprudence, especially the Lahore High Court in 2021 MLD 1215 (Shafqat Masih and others v. The State), affirms that electronic evidence may be considered as primary evidence, provided subject to cross-examination. However, in the light of judgments reported as 2020 SCMR 873 (Ahmed Bakhsh v. Ameer Ali Khan), 2021 MLD 1415 Lahore (Shafqat Masih and others v. The State), PLD 2019 SC 675 (Ishtiaq Ahmed Mirza v. Federation of Pakistan), and PLD 2019 Lahore 366 (Yasir Ayyaz v. state), a common principle emerges: for digital evidence to be admissible, two primary conditions must be fulfilled:

i. Its origin must be accounted for (i.e., how the evidence was acquired);

ii. A forensic certificate must verify that the video or digital evidence is unedited and intact.

1. Thus, for digital evidence to carry probative value, the prosecution needs to prove the case against the accused, while relying on the report of forensic expert which must adhere to the following principles that:

· The data must not be altered;

· Its source must be clearly disclosed;

· It must be unedited;

· The chain of custody must be fully described;

· Computer-generated evidence is preferred over computer-stored, since the former minimizes the risk of duplication or manipulation.

1. At the conclusion of this evaluation, this Court is of the considered view that the electronic devices including Samsung mobile phone A71, Kingston USB (silver), and Kingston USB (black), allegedly recovered and formed the foundation of the prosecution's case were neither produced in Court nor sealed at the time of recovery. Moreover, the digital expert failed to provide any timeline of malware intrusion or the date of its entry into the system, hence, following additional defects noted by this Court in digital forensic analysis report are as under:

i. Digital forensic analysis report is silent on the point as to how and to whom official data has been shared by the appellant.

ii. Report is silent regarding mode and manner of sharing of alleged information / data.

iii. No I.D, email, etc. of any person to whom alleged information has been shared was mentioned.

iv. CW.1 has not given any statement regarding receiving of sealed articles from police station, its opening of the seal and again sealing of the same after conducting digital forensic analysis.

v. The report has not mentioned anything regarding storage of alleged phone from where documents were retrieved nor mentioned capacity of the alleged phone.

vi. No details is provided in the report with regards to any folder (my app, documents, photos, photos hidden, document wallet, etc.) from which secret information was retrieved.

vii. The report is also silent with respect to retrieved information / data was obtained from cloud storage or else.

viii. The report is silent with respect to any google I.D. of android phone to substantiate that alleged phone belongs to appellant.

ix. No password cracking method has been mentioned in digital forensic analysis report to establish as to how expert secured access of the phone.

x. No details of any foreign agent phone number has been confirmed in the report.

1. These omissions lead to the irresistible conclusion that the digital evidence/data referred to by the forensic expert cannot be treated as primary evidence, particularly when its integrity is demonstrably compromised and its transmission/communication to someone (foreign agent in this case) is also not being proved through the forensic report. The answers given by the forensic witnesses during cross-examination are not fulfilling the essential principles of admissibility of digital evidence enshrined in the Qanun-e-Shahadat Order, 1984, including the origin, copying, originality, communication, transmission etc. thereby collapsing the entire edifice of the prosecution's case against the appellant.

2. The ordinary understanding of "communication" involves sharing, transmitting, or disclosing sensitive information which poses a risk to the state's interests. However, no such unauthorized sharing of sensitive information has been proved in this case.

3. Consequently, the entire digital evidence loses its efficacy, legal sanctity, and admissibility for the purposes of conviction.

4. The prosecution failed to prove that the information allegedly shared was classified, or that its disclosure harmed national interests, or that there was any association between the appellant and a foreign agent.

5. While the Official Secrets Act does allow for presumptions regarding unauthorized communication being prejudicial to the state, such presumptions require a foundational evidentiary basis, which is completely lacking in this case.

6. The learned trial Court, while discussing Sections 3 and 4 of the Official Secrets Act, 1923, relied upon the post-amendment version of the law. However, the appellant's case falls within the pre-amendment period making it a significant legal error and oversight. Consequently, the principal allegations under Sections 3 and 4 of the Act are not proved within the statutory framework applicable, conviction cannot be sustained.

7. Section 3(1)(c) of the pre-amendment Official Secrets Act criminalizes the act where any person:

"obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy."

1. In the appellant's case, no such material has been presented on the record. The prosecution has failed to produce any document, sketch, code, or information allegedly shared, nor has it identified what was shared or with whom. The alleged foreign agent remains unidentified, with no name, address, or confirming evidence of his status as an agent of a foreign power.

2. Furthermore, Section 3(2) allows a presumption of prejudicial purpose only where there is a recovery of sensitive material and the accused's conduct or known character supports such a presumption. It provides:

2025 P Cr. L J 1735

[Islamabad]

Before Mohsin Akhtar Kayani, J

Dr. Tashfeen Khan---Petitioner

Versus

National Accountability Bureau through Chairman and another---Respondents

Writ Petition No. 138 of 2025, decided on 23rd June, 2025.

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

----S. 9(a)(v), Explanation-II [as inserted by National Accountability (Amendment) Act (XI of 2022)]---Bank transaction---Credit entries---Asset of accused---Pre-condition---To consider bank transaction as assets, Explanation-II to S.9 (a)(v) of National Accountability Ordinance, 1999 has put a condition that onus is on investigating officer to provide that a corresponding asset was established from the exact bank transactions in question---Otherwise, entries of bank account cannot be treated as assets.

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

----S. 18 (a)(c) [as amended by National Accountability (Amendment) Act (XI of 2022)]---Terms "inquiry" and "investigation"---Scope---Inquiry under National Accountability Ordinance, 1999 is "inquisitorial" and it demands explanation from accused, which helps inquiry officer to formulate an "opinion" that enough incriminating material is available and prima facie a case can be established against accused and such inquiry can be converted into investigation.

Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921 rel.

(c) Words and phrases---

----Substantiate---Connotation.

Oxford Dictionary rel.

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

----Ss. 9 (a)(v) & 18 (c) [as amended by National Accountability (Amendment) Act (XI of 2022)]---Assets substantially disproportionate to known sources of income of accused---Converting inquiry into investigation---Term "substantiated with material evidence"---Prima facie presumption---Scope---For conversion of inquiry into investigation, under S.18 (c) of National Accountability Ordinance, 1999 term "substantiated with material evidence" requires minimum standards to be set for Inquiry Officers---Required material should include:

i. Call-up notice under section 19 of National Accountability Ordinance, 1999;

ii. Details of properties;

iii. Details of bank accounts;

iv. Details of properties in the names of family members falling within the definition of "family";

v. Details of Benami properties;

vi. Tax records;

vii. Official service record, including dates of appointment and posts held.

viii. Only after collecting such material inquiry officer may issue a questionnaire to accused/public servant to seek explanation of sources of payment. The questioner calls upon accused / public servant to explain payment details and sale consideration paid to vendors at the date of purchase of immovable properties transferred in the name of accused / public servant or his family members.

ix. Inquiry Officer at the minimum should prepare account statement calculating value of assets in terms of Explanation-I and Explanation-II provided in section 9 (a) (v) of National Accountability Ordinance, 1999. If calculation requires technical support, Inquiry Officer may hire a technical expert, such as an auditor or accountant, for preparation of calculation sheet with a timeline and dates starting from date of appointment of civil servant till issuance of call-up notice, with each valuation reflected against immovable property as per registered instrument.

x. Details of salary and financial benefits received by accused / public servant from the first day of appointment till the issuance of call-up notice has to be drawn in a mathematical format to at least examine prima facie fulfillment of Rs. 500 million threshold required for initiating investigation and trial under National Accountability Ordinance, 1999. Inquiry Officer should also requisition tax record from concerned taxation circle and may also record statement of Income Tax Officer (ITO) after confronting him with all tax returns filed by accused. Further, the Inquiry Officer should collect service record from Establishment Division or concerned Ministry, as the case may be, with reference to any allegation of misconduct during service against accused / public servant and outcome of such departmental proceedings, including any penalty imposed and the final verdict in that regard.

xi. Any litigation related to properties in question should also be treated as relevant. Inquiry Officer must demonstrate, at least to the extent of justifying that the total assets are beyond known sources of income, that the report contains value of declared known sources and any valuation which is not consumable or justifiable against acquisition of any property.

xii. Where valuation of a property appears exorbitant and is not supported by any known source, a specific explanation should be sought from accused / public servant. Inquiry Officer should verify valuation from the office of Joint Sub-Registrar, real estate agents / companies or official valuators and such valuation must be appreciated on the basis of registered documents.

xiii. If there is no registered document, average market value of similar properties during relevant period should be considered for valuation in light of Rs.500 million threshold.

---If all such factors are mathematically calculated and the valuation crosses threshold of Rs.500 million, a prima facie presumption arises that initial burden has been discharged.

Syed Mohammad Hashim Babar v. The State 2010 SCMR 1697 rel.

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

----S. 18 (c) [as amended by National Accountability (Amendment) Act (XI of 2022)]---Converting inquiry into investigation---Principle---Responsibility squarely rests on Inquiry Officer to fulfill statutory duty of conducting thorough preliminary proceedings---Any failure in such regard renders conversion of inquiry into investigation unlawful---Investigation must be based on collection of admissible and incriminating material sufficient for prosecution.

Imran Ahmad Khan Niazi v. Federation of Pakistan through Secretary, Law and Justice Division, Islamabad PLD 2024 SC 102 rel.

(f) Interpretation of statutes---

----Explanation added to a section---Object, purpose and scope---Explanation is not an enacting provision; rather, it serves to remove doubts or ambiguities, thereby aiding in the construction of principal enactment.

Commissioner Inland Revenue, Lahore v. Millat Tractors Limited, Lahore 2024 SCMR 700 rel.

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

----Ss. 9 (a)(v) & 18 (c) [as amended by National Accountability (Amendment) Act (XI of 2022)]---Constitution of Pakistan, Art. 199---Constitutional petition---Assets substantially disproportionate to known sources of income of accused---Converting inquiry into investigation---Petitioner / accused was civil servant who was alleged to have assets beyond his known sources of income---National Accountability Bureau after conducting inquiry upgraded the proceedings into investigation---Validity---Inquiry Officer failed to complete requisite process and did not collect necessary material to substantiate and fulfill requirement of S.18 (c) of National Accountability Ordinance, 1999 before recommending conversion of inquiry into investigation---Inquiry report was insufficient and not up to the mark---Material evidence must lead a prudent mind to the conclusion that assets in the name of accused or his family members are beyond his known sources of income, assessed through proper mathematical calculation---Only in such cases should the inquiry be converted into investigation---Failing that, Investigation Officer should proceed to collect further admissible material to justify prima facie initiation of investigation---No auditor's report or detailed calculation sheet justifying income from date of appointment of accused / public servant till retirement had been provided---Inquiry Report did not meet the legal standard---High Court directed Investigation Officer to collect and compile all relevant material; submit a detailed report to the competent authority; include mathematical calculation sheet justifying Rs. 500 million threshold; provide a valuation sheet and total income received by petitioner / accused as civil servant from day one of his appointment; and proceed further in accordance with law---High Court declared that failing such compliance, inquiry could not be considered valid---High Court clarified that NAB authorities were not debarred from initiating a fresh inquiry or re-inquiry, including but not limited to verifying valuation of foreign assets and source or mode of transfer of sale consideration to foreign vendors---Same must be demonstrated through legitimate means including banking channels---Petitioner / accused public servant would be required to submit a valid explanation for transferring sale consideration abroad---High Court declared that material against petitioner / accused did not form basis of a corruption charge---High Court in exercise of Constitutional jurisdiction set aside inquiry report as well as its conversion into investigation---High Court further directed NAB authorities to fulfill requisite legal formalities for conducting inquiry and its subsequent conversion into an investigation---Constitutional petition was allowed accordingly.

Barrister Qasim Wadud, Shumayl Aziz and Barrister Waleed Ahmed Jadoon for Petitioner.

Muhammad Rafay Maqsood, Sr. Special Prosecutor, NAB and Rauf Alam, A.D/I.O, NAB for Respondents.

Date of hearing: 4th June, 2025.

JUdgment

Mohsin Akhtar Kayani, J.---Through the instant writ petition, the petitioner, Dr. Tashfeen Khan, has called in question the inquiry conducted by the respondent/NAB and the conversion of the same into an investigation, as well as the callup notices and questionnaires issued to the petitioner.

1. Brief facts referred in the instant case are that Dr. Tashfeen Khan (petitioner) and his spouse have been called upon to explain the accumulation of assets beyond their known sources of income. In this regard, NAB authorities initially confronted the petitioner through a call-up notice. The petitioner, being a retired ex-Additional Secretary of the Government of Pakistan, was confronted with details of his properties, including bank accounts. As per record, he owns eight properties in UAE and the United Kingdom, whereas he owns approximately 11 properties in Pakistan comprising apartments, shops, plots, houses, agricultural properties, and vehicles; that petitioner has submitted all the requisite documents claimed by the respondent/NAB, including but not limited to title documents as well as bank details of all the properties, including immovable and movable assets, bank balances, and foreign bank accounts. As per his claim, he and his wife possess assets with a total value of Rs. 316,117,764, as calculated and summarized on 30.03.2023.

2. Learned counsel for the petitioner contends that the initiation of inquiry by the NAB authorities is illegal, as they have not prima facie collected the requisite information to cross through the threshold of five hundred million rupees settled in the NAO 1999, especially after the amendments therein. He further contends that the conversion of inquiry into investigation under Section 18(c) of the NAB Ordinance, 1999 requires to fulfill the condition that offence committed under the Ordinance is substantiated with material evidence. Unless such information is substantiated, the inquiry cannot be converted into an investigation. Moreover, he further contends that the petitioner and his wife have already declared all their assets in the FBR record and nothing has been concealed in any manner. The income tax authorities have never challenged their income tax returns or charged them with tax evasion under the Income Tax Ordinance. Furthermore, learned counsel claims that after the first Amendment in NAO, 1999, the phrase of "corrupt and dishonest means" and two Explanations are inserted in Section 9(a)(v), which has raised the threshold of evidence and set separate requirement under the law to substantiate the corrupt and dishonest means. Therefore, the very conversion of inquiry into investigation is illegal and the petitioner has been harassed without any justiciable basis. Even the antecedents of the petitioner are clean throughout his entire service career, and no misconduct has ever been mentioned against him, especially when the Establishment Division has not provided any such information, where any charge was ever made against him of corruption, corrupt practices, or living beyond known sources of income. Thus, as per Section 4(2) (G) no funds, interest or property of the appropriate government was involved and there is no loss to the government or public exchequer on the record or in inquiry report.

3. Conversely, learned Special Prosecutor, NAB contends that multiple call-up notices and questionnaires were issued to the petitioner and his family members, but they have not been cooperating in the inquiry or investigation, nor have they provided the source of income, especially considering that the petitioner was a civil servant. During his entire service, he never declared ownership of such large-scale assets, commercial shops, plots, apartments, houses, agricultural land, and foreign assets in UAE and the UK. He failed to explain the channels through which he transmitted sale consideration to foreign vendors, who transferred assets into his name. Therefore, a presumption is raised against the petitioner.

4. Arguments heard. Record perused.

5. Perusal of the record reflects that the petitioner is an ex-civil servant, retired from the Government of Pakistan as an Additional Secretary. After his retirement, he was served with a call-up notice under Section 19 of NAO 1999 for the purpose of inquiry in terms of Section 9(a)(v) of NAO 1999.

6. Before proceeding further, it is important to reproduce Section 9(a)(v) of the NAO, 1999, both pre and post amendment:

| | | | --- | --- | | Pre- First Amendment | Post First Amendment | | 9. Corruption and Corrupt Practices: (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- … (v) if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income; | (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- … (v) if he or any of his dependents or other benamidars, through corrupt and dishonest means, owns, possesses or acquires rights or title in assets substantially disproportionate to his known sources of income which he cannot reasonably account for. Explanation I.- The valuation of immovable property shall be reckoned on the date of purchase either according to the actual price shown in the relevant title documents or the applicable rates prescribed by District Collector or the Federal Board of Revenue whichever is higher. No evidence contrary to the later shall be admissible. Explanation II.- For the purpose of calculation of movable assets, the sum total of credit entries of bank account shall not be treated as an asset. Bank balance of an account on the date of initiation of inquiry may be treated as a movable asset. A banking transaction shall not be treated as an asset unless there is evidence of creation of corresponding asset through that transaction." |

1. Upon comparing both versions, the principal provision remains the same i.e. a person must explain acquisition of property, assets, or rights substantially disproportionate to known sources of income. The amendment has introduced the phrase of "corrupt and dishonest means" and Explanations I and II, which were not part of the original text and which have significantly altered the framework.

2. After the amendment to the NAB Ordinance, Section 14(c) has been omitted, therefore, previously existing adverse presumption has been removed. Now the NAB authorities are under an obligation to prove that the accused has accumulated substantially disproportionate assets through corrupt and dishonest means. This requirement was not earlier part of the law. Previously, in the case of a civil or public servant, an adverse presumption in case of assets beyond means was there unless contrary is proved and the public office holder had to provide an explanation or reasonable source for his assets to prove his case. After the amendment, additional safeguards have been provided to the holder of public office through the application of Explanations I and II under Section 9(a)(v).

3. Another important provision is Section 5(o) of NAO 1999, which defines the term "offence", which means corruption and corrupt practices and other offences defined in the Ordinance with a threshold value not less than Rs.500 million and includes offences specified in the Schedule to the Ordinance. This provision sets a valuation threshold relevant to Explanations I and II of Section 9(a)(v), especially for the purpose of valuation of immovable properties, movable assets, bank accounts, etc. The section, after amendment lays down the following conditions and criteria to collect the material evidence to substantiate the offence under the Ordinance:

i. Assets substantially disproportionate to his known sources of income.

ii. The immovable property shall be reckoned from the date of purchase and the value of property must be

· Either the actual price (mentioned in any titled document collected by I.O as an evidence).

· Or the rate prescribed by the DC or FBR on the date of purchase of the immovable property.

iii. In case of moveable assets, the credit entries of the bank account shall not be treated as assets unless there is evidence of creation of corresponding asset through that transaction. (Emphasis added)

1. The explanation II further puts a condition that to consider bank transaction as assets the onus is on I.O to provide that a corresponding asset was established from those exact bank transactions. Otherwise, the entries of bank account shall not be treated as assets. Thus, the instant matter falls under Section 9(a)(v) and as per the interpretation of Section 4(2)(g), the presumption is attached that the government interest or loss is involved because the petitioner was a public office holder but after the omission of Section 14 an adverse presumption cannot be drawn that all the assets were obtained through corruption and dishonest means. The inquiry authorities have to collect material evidence to substantiate the offence. And the cumulative value of all the assets (that can be read as evidence) must cross the threshold of 500 million Rupees. Therefore, after issuance of a call-up notice, the Inquiry Officer must collect sufficient material that meets the threshold of Rs.500 million under Section 5(o). Offences below this value fall outside the purview of NAO 1999.

2. Upon the plain reading of the relevant provisions, it is apparent that the Inquiry Officer is under a legal obligation to discharge the initial onus to fulfill the threshold under the law. The NAO, 1999 is silent as to detailed inquiry or investigation rules, and no such rules prescribe the factors or ingredients to be examined to convert an inquiry into an investigation.

3. As the terms "inquiry" and "investigation" appear in the section 18(c) indicates that the legislature intended to give them different meanings. Since both these terms are not defined in the NAO, 1999 and are no inquiry or investigation rules formulated under the Ordinance as well, therefore, I took guidance from the FIA (Inquiries and Investigation) Rules, 2002 and the FIA's Directions and Guidelines regarding verification and enquiries etc. of 2020, which support this view that 'inquiry' is different from 'investigation'. In 1989 PCr.LJ 1921 (Adamjee Insurance Company Ltd. v. Assistant Director, Economic Enquiry Wing), a Divisional Bench of the Sindh High Court stated that the above-mentioned two terms are different and "they connote two different meanings. In our view inquiry can be termed as the first step towards investigation." It wouldn't be wrong to conclude that inquiry under NAO is "inquisitorial" and it demands explanation from the accused, which helps the I.O to formulate an "opinion" that enough incriminating material is available and prima facie a case can be established against the accused thus the inquiry can be converted into investigation.

4. It is settled law that the Criminal Procedure Code (Cr.P.C.) is applicable to proceedings under the NAO 1999. The concept of "investigation" explained in Chapter XIV of the Cr.P.C. deals with the investigation of cognizable and non-cognizable offences. Although "investigation" is not defined in the P.P.C. or Cr.P.C., a combined reading of those statutes, along with Police Order, 2002 and Police Rules 1934, makes clear that investigation consists of spot inspection, collection of evidence, ascertainment of facts, and apprehension of accused, provided that evidence connects the accused with the charge. If the investigator concludes that the evidence is sufficient, a final report is to be prepared. The investigator may also cancel the criminal case if evidence is lacking.

5. The term "investigation" must not be confused with inquiry, "verification" or "reinvestigation." Investigation involves collection of evidence in accordance with law. It is the duty of the prosecution to prove the ingredients of the offence. In cases under Section 9(a)(v), the prosecution must establish:

(i) That the accused was a holder of public office;

(ii) The nature and extent of pecuniary resources, property, and assets in his possession;

(iii) The known sources of income;

(iv) That the resources or property found in possession were disproportionate to known sources of income.

These principles were laid down by the Hon'ble Supreme Court of Pakistan in case law reported as 2010 SCMR 1697 (Syed Mohammad Hashim Babar v. The State). Another relevant provision is Section 18 of NAO 1999, which deals with cognizance of offences by the Court, Section 18(c) has an independent role in determining when inquiry may be converted into investigation. Therefore, it is necessary to reproduced Section 18(c):

Where the Chairman NAB, or an officer of the NAB duly authorized by him, is of the opinion that it is, or may be, necessary and appropriate to initiate proceedings against any person, he shall refer the matter for inquiry. [If after completion of inquiry the allegations of commission of an offence under this Ordinance are substantiated with material evidence, the matter shall be converted into investigation.

1. On plain reading of the provision, emphasis is placed on the requirement of "substantiated with material evidence", which implies that the Inquiry Officer must collect material that visibly meets the legal threshold. The Oxford Dictionary defines "substantiate" as to prove, give proof of, show to be true, justify, vindicate, validate, corroborate, verify, authenticate, confirm, endorse, give credence to, and establish. These terms relate to the concept of "evidence" whether admissible or not and the Inquiry Officer must collect material sufficient to demonstrate a valid justification for treating a civil or ex-civil servant as an accused for not explaining known sources of income.

2. The concept of "presumption" arises when the accused fails to reasonably account for the disproportionate assets. Such presumption goes against the civil servant and the case is to be treated under Section 9 of NAO 1999 as one involving corruption and corrupt practices.

3. In this regard, this Court confronted the Inquiry Officer with the question that what material had been collected. In response, the Inquiry Officer relied solely on the Inquiry report, specifically paragraph 6 in the following manner:

i. During the proceedings of inquiry, it has transpired that the accused Tashfeen Khan and his spouse accused Rubina Tashfeen Khan have accumulated assets beyond their known sources of income. They not only misdeclared the purchase price of properties but also laundered money by transferring funds multiple times in their different bank accounts to hide origin of funds.

ii. The bank record reveal that the accused persons and their family possess 44 x bank accounts. The analysis of these bank accounts reveals that the total debit and credit turn-over in these accounts are Rs. 1.547 Billion and Rs. 1.561 Billion respectively which does not commensurate with sources of income of accused persons.

iii. Further, the accused purchased Gold 350 Tola in various years declaring purchase price to be Rs.2.9 million which was the rate much lesser than the then prevailing market rates of gold.

iv. The accused Rubina Tashfeen, prima facie, purchased an apartment in Silver Oaks, Islamabad in name of one Amjad Farooq (Benamidar) to launder black money.

v. The accused Tashfeen Khan purchased several properties including shops, plots and agricultural land, mis-declaring their purchase prices. He also did not possess reasonable sources of income for purchase of some of the properties.

vi. The accused Rubina Tashfeen purchased multiple properties and reportedly mis-declared the actual price / amount involved to defeat the process of justice. She was issued call-up notice to appear before the CIT for presenting her plea, however, she avoided to attend the proceedings of inquiry and mislead the inquiry team through flimsy replies.

vii. The accused Tashfeen Khan and Rubina Tashfeen also declared some properties as gift without any logical / reasonable justification to mislead the proceedings the inquiry.

viii. The accused also purchased various properties abroad without reasonable sources of income.

1. Upon plain reading of said findings, it is observed that the Investigation Officer (I.O) reached at the conclusion that the petitioner and his wife had accumulated assets beyond their known sources of income. However, the entire inquiry report is silent regarding any calculation of income from the date of appointment until retirement this being a minimum required yardstick or any other business income claimed by the petitioner in response to the call-up notice.

2. Therefore, this Court holds that under Section 18(c) of NAO 1999, the term "substantiated with material evidence" for conversion of inquiry into investigation requires minimum standards to be set for Inquiry Officers. The material should include:

i. Call-up notice under Section 19 of NAO 1999;

ii. Details of properties;

iii. Details of bank accounts;

iv. Details of properties in the names of family members falling within the definition of "family";

v. Details of Benami properties;

vi. Tax records;

vii. Official service record, including dates of appointment and posts held.

viii. Only after collecting such material may the inquiry officer issue a questionnaire to the accused/public servant to seek explanation of the sources of payment/The questioner shall call upon the accused/public servant to explain the payment details and the sale consideration paid to the vendors at the date of purchase of the immovable properties transferred in the name of the accused/public servant or his family members.

ix. The Inquiry Officer shall, at the minimum, prepare an account statement calculating the value of the assets in terms of Explanation I and Explanation II provided in Section 9(a)(v) as per the amended NAB Ordinance. If the calculation requires technical support, the Inquiry Officer may hire a technical expert, such as an auditor or accountant, for the preparation of a calculation sheet with a timeline and dates starting from the date of appointment of the civil servant till the issuance of the call-up notice, with each valuation reflected against the immovable property as per the registered instrument.

x. The details of salary and financial benefits received by the accused/public servant from the first day of appointment till the issuance of the call-up notice shall be drawn in a mathematical format to at least examine the prima facie fulfillment of the Rs. 500 million threshold required for initiating investigation and trial under the NAB Ordinance.

xi. The Inquiry Officer shall also requisition the tax record from the concerned taxation circle and may also record the statement of the Income Tax Officer (ITO) after confronting him with all the tax returns filed by the accused. Further, the Inquiry Officer shall collect the service record from the Establishment Division or the concerned Ministry, as the case may be, with reference to any allegation of misconduct during service against the accused/public servant and the outcome of such departmental proceedings, including any penalty imposed and the final verdict in that regard.

xii. Any litigation related to the properties in question shall also be treated as relevant. The Inquiry Officer must demonstrate, at least to the extent of justifying that the total assets are beyond the known sources of income, that the report contains the value of declared known sources and any valuation which is not consumable or justifiable against the acquisition of any property.

xiii. Where the valuation of a property appears exorbitant and is not supported by any known source, a specific explanation shall be sought from the accused/public servant. The Inquiry Officer shall verify the valuation from the office of the Joint Sub-Registrar, real estate agents/companies, or official valuators, and such valuation must be appreciated on the basis of the registered documents.

xiv. If there is no registration document, the average market value of similar properties during the relevant period shall be considered for valuation in light of the Rs. 500 million threshold.

1. If all the above factors are mathematically calculated and the valuation crosses the threshold of Rs.500 million, a prima facie presumption shall arise that the initial burden has been discharged. Thereafter, the concept of disproportionate to known sources of income stands attracted. At this stage, the burden shall shift upon the accused/public servant. This Court is fortified with the view referred in Hashim Babar case (supra), which supports the stance of the prosecution.

2. Now adverting to the explanation rendered by the accused under Article 122 of the Qanun-e-Shahadat Order, 1984, the accused is required to explain his conduct and demonstrate that his known sources of income permitted him to acquire such properties. If such explanation is found satisfactory, the inquiry shall not be converted into an investigation, nor shall it proceed further.

3. This Court is also cognizant that, following the 2022 amendment, the statutory presumption under Section 14 of the National Accountability Ordinance, 1999 previously enabling the prosecution to presume illegal gratification has been omitted. Consequently, the assessment of pecuniary resources disproportionate to known sources of income must now be undertaken without the aid of such presumption. This legal position has been reaffirmed in PLD 2024 SC 102 (Imran Ahmad Khan Niazi v. Federation of Pakistan through Secretary, Law and Justice Division, Islamabad). Accordingly, the responsibility now squarely rests on the Inquiry Officer to fulfill the statutory duty of conducting thorough preliminary proceedings. Any failure in this regard would render the conversion of an inquiry into an investigation unlawful, as an investigation must be based on the collection of admissible and incriminating material sufficient for prosecution.

4. In the present case, the issue of non-cooperation by the accused has been raised. However, no material has been placed on record to substantiate such claim. Hence, the primary burden still rests upon the Inquiry Officer to complete the threshold requirement and substantiate the case on the touchstone of admissible material before any conversion.

5. The insertion of the Explanation to Section 9(a)(v) is declaratory and intended to clarify the legislative intent underlying the provision. It does not alter or enlarge the substantive scope of the section but merely elucidates its meaning. It is a well-settled principle of interpretation that an explanation is not an enacting provision; rather, it serves to remove doubts or ambiguities, thereby aiding in the construction of the principal enactment. Reliance in this regard is placed on 2024 SCMR 700 (Commissioner Inland Revenue, Lahore v. Millat Tractors Limited, Lahore), wherein the Hon'ble Supreme Court held that the purpose of an explanation is interpretative in nature and does not operate to expand the statutory ambit of the provision to which it is appended.

6. This Court is of the considered opinion that the Inquiry Officer has failed to complete the requisite process and has not collected the necessary material to substantiate and fulfill the requirement of Section 18(c) before recommending conversion of inquiry into investigation. The inquiry report is insufficient and not up to the mark. Material evidence must lead a prudent mind to the conclusion that the assets in the name of the accused or his family members are beyond his known sources of income, assessed through proper mathematical calculation. Only in such cases should the inquiry be converted into investigation. Failing that, the Investigation Officer shall proceed to collect further admissible material to justify prima facie initiation of investigation.

7. In this case, no auditor's report or detailed calculation sheet justifying income from the date of appointment of the accused/public servant till retirement has been provided. The Inquiry Report, therefore, does not meet the legal standard. Accordingly, the Investigation Officer is directed to:

· Collect and compile all relevant material;

· Submit a detailed report to the competent authority;

· Include a mathematical calculation sheet justifying the Rs. 500 million threshold;

2025 P Cr. L J 1762

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

Muhammad Atif---Petitioner

Versus

The STate---Respondent

Criminal Revision Petition No. 106 of 2023, decided on 4th July, 2025.

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

----S. 498-F---Dishonestly issuing a cheque---Appreciation of evidence---Discharge of a financial obligation---Actus reus---Scope---There was no evidence of payment through bank to the petitioner, with no sight of the tax default notice, with the complainant admitting, while appearing himself in witness-box, that he had no direct dealings with the petitioner and with no appointment letter of the petitioner; it was a gross miscarriage of justice for the Courts below to conclude that the financial obligation underlying the cheques was established beyond reasonable doubt solely because the complainant had so deposed in his examination-in-chief---The prosecution case has to stand on its own strength, and not on an inferential basis that the underlying element of actus reus of the offence ( i.e. existence of a financial obligation) which had to be proved independently by the prosecution, but which was not proven to the standard of beyond reasonable doubt---Mere issuance of a cheque which stood dishonoured on presentation does not per se constitute the offence under S.489-F, P.P.C., unless some evidence of the underlying financial transaction accompanies it---There was patent misreading of the evidence in the trial by both the Courts below and also that the conclusion of law of the financial obligation premised on the presumption of consideration was incorrect, leading to a grave miscarriage of justice, with the petitioner ending up serving a sentence that could not be awarded to him---High Court set-aside the petitioner's conviction and the appellant was acquitted of the charge for which he was convicted---Appeal was allowed accordingly.

Mian Allah Ditta v. The State 2013 SCMR 51 and Muhammad Ashraf v. The State 2021 PCr.LJ 586 ref.

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

----S. 498-F---Negotiable Instruments Act ( XXVI of 1881), S. 118---Dishonestly issuing a cheque---Appreciation of evidence---Discharge of a financial obligation---Criminal matter---Presumption of consideration, applicability of---Record revealed that the presumption of consideration under S.118 of the Negotiable Instruments Act, 1881( ' the Act 1881') was wrongly relied to presume the existence of the key ingredient of an underlying financial obligation---The presumption of consideration under the Act 1881 is for civil disputes, which does not apply to criminal matters and does not dispense the prosecution's duty to establish the underlying financial obligation beyond reasonable doubt---For the purposes of the civil courts, the Act 1881 lays down that the presumption is that a promissory note has been passed for consideration and said rule of law would not necessarily apply to a criminal trial in which every element which goes to constitute a particular offence has to be proved by the prosecution---In the present case , it was necessary for the prosecution to prove that the promissory notes were for consideration and it was not for the accused to prove the contrary.

Sakhawat Haider v. Emperor AIR 1920 Allahabad 242(1) ref.

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

----S. 498-F---Negotiable Instruments Act ( XXVI of 1881), S. 118---Dishonestly issuing a cheque---Presumption of consideration---Section.489-F did not exist when the Negotiable Instruments Act, 1881, was passed; if it did, undoubtedly , the framers of the Act would have added that the presumption did not apply in criminal trials for the reason that the operation of such a presumption would obviate the need for the prosecution to prove the ingredients of the offence by independent evidence, with the unsalutary consequence that the burden of proof for both civil trials and criminal trials in cases of dishonour of cheques would become one of a balance of probabilities only, and the prosecution would then rest by simply producing a dishonoured cheque for the guilt of the accused to follow as a necessary consequence of the presumption of consideration---That would run counter to the very foundations of criminal jurisprudence.

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

----S. 498-F---Dishonestly issuing a cheque---Appreciation of evidence---Discharge of a financial obligation---Actus reus---Registration of multiple FIRs---Scope and effect---Registration of three FIRs in different police stations under S.489-F is contrary to the law---The underlying transaction was the same: the three cheques were issued for payment of the same amount in instalments, which, in any event, per the petitioner's case, were issued under coercion in the police station---Registration of the other two FIRs was plainly contrary to the settled law---The proper legal route would have been to add the offence of S.489-F in the original FIR, as the antecedent question of the financial obligation allegedly owed by the petitioner to the complainant was pivotal to bring home the charges under the original FIR , and the Courts below committed a grave error by deciding the S.489-F FIR without waiting for the original FIR 594/21 to be decided first ---There was patent misreading of the evidence in the trial by both the Courts below, and also that the conclusion of law of the financial obligation premised on the presumption of consideration was incorrect, leading to a grave miscarriage of justice, with the petitioner ending up serving a sentence that could not be awarded to him---High Court set-aside the petitioner's conviction and he was acquitted of the charge for which he was convicted---Appeal was allowed accordingly.

Owais Awan for Petitioner.

Ch. Muhammad Nawaz, State counsel along with Jawad Hussain Aadil for the State.

Date of hearing: 29th May, 2025.

JUdgment

Sardar Ejaz Ishaq Khan, J.---The petitioner assails the judgment of his conviction by the trial Court dated 19.06.2023, and of the appellate court dated 27.06.2023 dismissing his appeal, whereby he was convicted and sent to serve his sentence of 3 years under section 489-F P.P.C., in FIR No. 99/2022, Police Station Sihala, Islamabad.

1. Prior to the instant FIR, on 11.08.2021, FIR No. 594/21 was registered at Police Station Industrial Area under sections 420, 468/471 P.P.C., by the same complainant, on the allegations of the petitioner embezzling Rs.9.1 million given by the complainant to him for deposit against the complainant's outstanding tax liability owed to Khyber Pakhtunkhwa Revenue Authority (KPRA), coupled with the allegation of preparing forged deposit slips of KPRA.

2. While in police custody, and for the complainant not opposing the petitioner's bail in FIR 549/21, the petitioner signed 3 cheques in the sum of Rs. 7.1 million (with 2 million claimed to have been repaid in cash), and filed a 'bayan halfi' to that effect before the trial Court. He was released on bail. The cheques bounced, and three separate FIRs were registered by the complainant in three different police stations.

3. The instant FIR no. 99/22, dated 01.02.2022, was registered at police station Sihala, under section 489 F P.P.C. in respect of one cheque. The relevant part of the FIR reads as under:

4. By the time this petition was finally heard, the petitioner had already undergone his entire sentence of three years. On 19.07.2024, the case was disposed of on that basis, but the petitioner's counsel insisted through a CM that his client was innocent, and that the finding of conviction be examined by this Court, notwithstanding the petitioner having served out his sentence.

5. I have reviewed the two judgments of the learned Courts below in light of the record, and I come to the conclusion that the petitioner's conviction was not possible on the basis of the evidence presented.

6. The following assertions of primary facts per the FIR were essential to be proven, but were not, and so I briefly deal with those assertions of facts and the evidence led:

The complainant, who appeared as PW-3, admitted in this cross--examination that he had not produced any evidence of the appointment of the petitioner as his agent for deposit of tax and that no contract for services was signed. Not only that, he also admitted that he did not even know where the petitioner's office was! It does not appeal to a rational mind that the complainant, a businessman, would hire someone to provide professional tax services without any formal contract, and that too where the amount to be entrusted to him was a huge sum of Rs. 9.1 million.

The complainant did not produce any evidence of payment of Rs. 9.1 million to the petitioner, even though he claimed to have made the payment through banking channels. He admitted in the cross-examination that he had not produced any such evidence. Later in the cross--examination, he took a contrary stance stating that he had made the payment through some other persons. He also admitted that he had no direct dealing with the petitioner. The IO (PW--1) admitted in cross--examination that the complainant did not produce before him any receipt of payment to the petitioner.

The complainant did not produce the default notices issued by the KPRA. He admitted so in the cross--examination. He even admitted that he did not even know how much was the defaulted amount!

1. I must confess my shock and surprise at both the Courts below overlooking these material shortcomings in the complainant's evidence on the pivotal facts on which his complaint rested. Both the Courts below ignored the most important element of section 489-F, namely, that the cheque was issued for the discharge of a financial obligation. With no evidence of payment through bank to the petitioner, with no sight of the KPRA's tax default notice, with the complainant admitting that he had no direct dealings with the petitioner, and with no appointment letter of the petitioner, it was a gross miscarriage of justice for the learned Courts below to conclude that the financial obligation underlying the cheques was established beyond reasonable doubt solely because the complainant had so deposed in his examination-in-chief.

2. The learned trial Court relied on the fact of the cheques being issued in a bail order by compromise, with the compromise deed filed with the Court. However, the terms of the compromise deed cannot be read to mean more than what they state expressly. They only state that if the cheques were dishonoured, the complainant may move for cancellation of bail and registration of FIR-no admission of guilt by the petitioner was made in his bayan halfi filed in the trial Court for bail. I fail to see how the trial court and the appellate court spelt out guilt of the petitioner from that bayan halfi. Instead, they ought to have paid greater attention to the petitioner's stance in his statement under section 342 Cr.P.C. that the cheques were obtained in blank with his signatures under coercion while in police custody. Based on the general experience, this is not uncommon.

3. The prosecution case has to stand on its own strength, and not on an inferential basis that the underlying element of actus reus of the offence, namely, existence of a financial obligation, which had to be proved independently by the prosecution, but which was not proven to the standard of beyond reasonable doubt. The mere issuance of a cheque which stood dishonoured on presentation does not per se constitute the offence under section 489-F P.P.C. unless some evidence of the underlying financial transaction accompanies it: Mian Allah Ditta v. The State (2013 SCMR 51) and Muhammad Ashraf v. The State (2021 PCr.LJ 586).

4. The learned Courts below relied on the presumption of consideration under section 118 of the Negotiable Instruments Act, 1881, to presume the existence of the key ingredient of an underlying financial obligation. This was a shocking legal error. The presumption of consideration under the Negotiable Instruments Act is for civil disputes. It does not apply to criminal matters, and does not dispense the prosecution's duty to establish the underlying financial obligation beyond reasonable doubt. It was held as follows in Sakhawat Haider v. Emperor [AIR 1920 Allahabad 242(1)]:

For the purposes of the civil courts the Negotiable Instruments Act lays down that the presumption is that a promissory note has been passed for consideration. The rule of law would not necessarily apply to a criminal trial in which every element which goes to constitute a particular offence has to be proved by the prosecution. In the present case it was necessary for the prosecution to prove that the promissory notes were for consideration and it was not for the accused to prove the contrary.

2025 P Cr. L J 1773

[Islamabad]

Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ

Arshad Farooq Faheem---Petitioner

Versus

National Accountability Bureau through Chairman, Islamabad and another---Respondents

Writ Petition No. 2007 of 2020,\ decided on 7th March, 2022.

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

----S. 9(a)(vi)---Offence of misuse of authority---Necessary ingredient---Offence of corruption and corrupt practice within the meaning of S.9 (a) (vi) of National Accountability Ordinance, 1999 is not an offence of strict liability---Use of authority without object of illegal gain or pecuniary benefit of undue favour to person with ulterior motive may not be a deliberate act to constitute an offence---Mens rea of offence under S.9(a)(vi) of National Accountability Ordinance, 1999 forms two elements i.e. (1) conscious misuse of authority and illegal gain (2) undue benefit---In absence of any of such basic components of crime, misuse of authority is not culpable.

The State v. Muhammad Idrees Ghauri 2008 SCMR 1118; Mansur-ul-Haq v. Government of Pakistan PLD 2008 SC 166 and The State v. Anwar Saifullah Khan PLD 2016 SC 276 rel.

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

----Ss. 9(a)(iv), (vi), (ix), (xii) & 25 [as amended by National Accountability (Second Amendment) Ordinance (XXVII of 2019)]---Drug Regulatory Authority of Pakistan Act (XXI of 2012), Ss. 3, 7, 10, 11 & 30---Criminal Procedure Code (V of 1898), S. 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Offence of misuse of authority---Proof---Regulatory functions---Price fixing---Drug Pricing Committee---Voluntary Return or Plea bargain of co-accused---Effect---Petitioner / accused was Chairman of Drug Pricing Committee and he was alleged to have increased prices of drugs in connivance with accused pharmaceutical companies who had entered into plea bargain---Trial Court declined to acquit petitioner / accused in exercise of powers under S.265-K, Cr.P.C.---Validity---Provisions of Drug Regulatory Authority of Pakistan Act, 2012 has overriding effect upon National Accountability Ordinance, 1999---Both were special laws having different jurisdictions to settle their technical aspects but Drug Regulatory Authority of Pakistan Act, 2012 had ultimate authority to fix or re-fix price of any drug or it could decrease or increase the same, which was not in the purview of National Accountability Ordinance, 1999 and the latter having overriding effect had to be applied---In case of conflict between two special laws, the conflict had to be resolved by reference to purpose and policy underlining the two enactments and clear intendment conveyed by the language of relevant provision therein---Pharmaceutical companies who allegedly earned some benefits and entered into plea bargain or voluntary return and return of huge sums of money could not be considered a charge against petitioner / accused, the then Chairman of Drug Pricing Committee, who was not all alone to settle technical questions on the basis of record, data or other documents having fake or maneuvered record or managed by those companies as alleged by NAB---There was not an iota of evidence to prosecute petitioner / accused in any manner who had performed his duties, though certain irregularities had been pointed out but the same were not within the purview of criminal misconduct as required under S.9(a)(iv(vi)(ix) and (xii) of National Accountability Ordinance, 1999, especially when explanation had come into play through National Accountability (Second Amendment) Ordinance, 2019---High Court acquitted petitioner / accused of the charge as reference was not proceedable---Constitutional petition was allowed in circumstances.

Syed Mushahid Shah v. Federal Investigation Agency 2017 SCMR 1218; Ashok Marketing and others v. Punjab National Bank (1990) 4 SCC 406; I.G. Haq Frontier Corps and others v. Ghulam Hussain and others 2004 SCMR 1397; Zahoor ud Din v. Khushi Muhammad 1998 SCMR 1840; Ajmeel Khan v. Abdur Rahim PLD 2009 SC 102; Rasool Khan v. Haji Banaras Khan PLD 2004 SC 364; The State v. Ashiq Ali Bhutto 1993 SCMR 523 and Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275 rel.

Muhammad Amir Niaz Bhadera for Petitioner.

Irfan Ahmed Boola, Special Prosecutor, NAB for Respondent No. 1.

Date of hearing: 15th February, 2022.

Judgment

Mohsin Akhtar Kayani, J.---Through the instant writ petition, the petitioner has assailed the order dated 14.07.2020, passed by learned Judge Accountability Court-I, Islamabad in Reference No.17 of 2016, whereby his application under Section 265-K Cr.P.C. has been dismissed.

1. Brief facts narrated in the reference before the Accountability Court-I, Islamabad are that during the course of inquiry/ investigation, it revealed that the accused at serial Nos. 1 to 8 being members of the Drugs Pricing Committee (DPC), including the present petitioner, extended undue benefit to the accused mentioned at serial Nos. 9 to 15 by increasing the prices of their drugs in violation of rules regarding fixation of prices of drugs. These companies/firms got illegal and unjustified price increase of their drugs by aiding, abetting and in conspiracy with accused members of 5th and 6th DPC meeting which was held on 09-10-2012 and 22-01-2013 while the sub-committee meeting was held on 19-11-2012. The accused at serial Nos. 1 to 8, in order to extend undue benefit to the accused companies/firms, dishonestly and malafidely did not verify and check the data submitted for increase of prices, hence, extended the benefit of unjustified increase of prices in violation of prescribed rules and procedure. During the course of inquiry/investigation, after scrutiny of available record, it was also revealed that five accused pharmaceutical companies / firms, in connivance with accused members of the Committees, got illegal price increase of their drugs by submitting incorrect costing data / inflated import invoices of raw material/finished drugs despite the fact that these companies / firms were importing raw material / finished drugs at very less rate at the relevant time period and even before and after the date of price increase. Two accused pharmaceutical companies, in connivance with members of Drugs Pricing Committees, malafidely did not submit relevant import invoices of raw material and finished drugs and got unjustified price increase, despite the fact that these companies were importing raw material and finished drugs at a very low rate at that time and even after that. One accused pharmaceutical firm namely M/s Zam Zam Corporation, in connivance with other accused, dishonestly got unjustified price increase of its twelve drugs on the basis of an illegal and unauthentic report filed in Hon'ble Sindh High Court, Karachi without approval of the Competent Authority. Moreover, the role and involvement of other directors of the above accused companies is being probed and the same will be finalized accordingly, hence this interim Reference is being filed.

2. The accused persons have been found involved in the commission of offences of corruption and corrupt practices as defined under section 9(a) of NAO, 1999 and Schedule thereto. The brief role of accused persons is mentioned in the succeeding paragraphs, however the detailed role and modus operandi of the accused persons is explained in the investigation report which is an integral part of this Interim Reference. It is also pertinent to mention here that accused company M/s R.G. Pharmaceutica (Pvt) Ltd submitted Plea Bargain application under section 25 (b) of NAO, 1999 and voluntarily came forward to return the illegal gain amounting to Rs. 385.12 million. The Plea Bargain application of accused company has been accepted by Chairman NAB and subsequently approved by Honourable Administrative Judge Accountability Court, Islamabad vide Order dated 14.06.2016.

3. Accused at serial No. 1 i.e. Arshad Farooq Faheem (present petitioner) as CEO, DRAP knowingly and dishonestly became chairman of 5th and 6th DPC despite the fact that he was also Chairman of Registration Board at the relevant time period, which is a violation of section 11-A of Drug Act, 1976. He, being the member of 5th and 6th DPC, in connivance with other members of DPC and beneficiaries, knowingly and dishonestly extended undue benefit to some of the pharmaceutical companies/firms by increasing the price of certain medicines in violation of Drug Act and rules / regulations. The accused, with ulterior motives by misusing his authority, fixed / approved the increase of price of certain drugs on incorrect / incomplete data / inflated invoices. Furthermore, in order to extend undue favour, the accused with mala fide intention also gave illegal and unjustified price increase to certain drugs even on note sheet in violation of Drugs Act and Rules / regulations framed there under.

4. Learned counsel for petitioner contends that after filing of the reference no charge has been framed till date and petitioner filed application, under Section 265-K, Cr.P.C. primarily on the ground that such application for acquittal of accused can be submitted at any stage of the trial, even before framing of charge when there is no probability of conviction in the case; that the overall allegations against the petitioner by the NAB are with regard to misuse of authority, rather abetting and aiding the other accused pharmaceutical companies having obtained higher prices without proper appraisal of the record, but there is no mens rea or guilt established by the prosecution, rather some procedural irregularities have been pointed out in the process by the NAB; that the fixation /realization of the price of drugs under Section 12 of the Drugs Act, 1976 and under Section 7 of the DRAP Act, 2012 is the regulatory function and authority of the Federal Government; that the DRAP as well as the Federal Government can fix / revise or rationalize prices of drugs, which has been processed through majority decisions of the DRAP and subsequently notified by the Federal Government on regular basis as a routine practice; that the Drugs Pricing Committee (DPC) has been constituted by the Federal Government having representatives of the manufacturers of medicines sectors, Provincial Government and Federal Government, which approves fixation and rationalization of the prices of registered drugs under the law: that no appeal or complaint has ever been filed against the decision of 5th and 6th meeting of DPC in which alleged act of misconduct was taken place, even though Section 9 of the Drugs Act, 1976 read with Section 30 of the DRAP Act, 2012 provides the appellate forum, as such, the NAB authorities are not in position to decide the technical aspect of pricing concept, which could only be done by the DRAP; that there is no adverse order from any subsequent meeting of DRAP against the petitioner in which it has been observed that the previous orders are illegal or contrary to law, that the apex Court, vide order dated 03.08.2018, passed in HRC No.2858/2006, has already held that anybody aggrieved by the decision of DRAP may challenge the same before appellate forum, hence the pricing concept could not be criminalized by the NAB in any manner, that the DRAP Act, 2012 has an overriding effect, as such, the process provided in the law for settlement of the prices regime cannot be superseded by the NAO, 1999, like in the case in hand. At last, the National Accountability (Second Amendment) Ordinance, 2019 also creates an exception in favour of the petitioner, who has not been charged with any allegation of accumulation of any monetary benefit or asset disproportionate to his known source(s) of income or which cannot be reasonably accounted for, therefore, he is entitled for acquittal as no probability of conviction is remotely visible in this case.

5. Conversely, learned Special Prosecutor NAB contends that in 5th and 6th Drugs Pricing Committee (DPC) Meeting all the members are involved in illegal increase in prices of drugs and after inquiry and investigation, the pharmaceutical companies, who have managed to get benefit of billions of rupees through wrongful gains, admitted their guilt and entered into plea bargain, as a result whereof, seven companies have returned the amount of Rs.959.73 million, which clearly establishes the conduct of members of the DRAP and DPC, who are involved in illegal increase in prices of drugs; that the petitioner being the then Chairman of 5th and 6th DPC in connivance of other members of DPC / beneficiaries knowingly and dishonestly with mala fide intention allowed illegal price increase of drugs of different firms/companies in violation of Drugs Act, 1976 and rules / regulations made there-under, as such, the petitioner with ulterior motive did not ask current reported invoice of raw material, finished drugs and costing data on prescribed proforma while granting price increase, as a result whereof, he permitted illegal and unjustified price increase to drugs in order to benefit the companies i.e. M/s R.G. Pharmaceutica (Pvt.) Ltd., M/s Saffron Pharmaceutical (Pvt.) Ltd.., Maple Pharmaceutical (Pvt.) Ltd. M/s Akhai Pharmaceuticals (Pvt.). Ltd., Galaxy Pharmaceutical (Pvt.) Ltd. Excel Health Care (Pvt.) Ltd. and Martin Dow (Pvt.) Ltd., as such, the total loss caused to public is Rs.1322 95 million approximately, whereas a sum of Rs.959.73 million has been recovered. It is further contended that National Accountability (Second Amendment) Ordinance, 2019 does not favour the accused on any count, rather it is lapsed at present, per se, the original law revives, therefore, no benefit could be claimed under the said amended Ordinance; that unless the evidence is recorded no case of acquittal at this stage is made out; that the learned Trial Court has rightly dismissed the petition by declaring it as premature.

6. Arguments heard, record perused.

7. Perusal of record reveals that the petitioner being the then Chairman of Drugs Pricing Committee (DPC), had considered the cases of fixing the price of different drugs in 5th and 6th DPC Meeting, held on 09.10.2012 and 22.01.2013, respectively, whereas the NAB has started inquiry and investigating the matter, as a result whereof, the primary charge against the petitioner has been fixed primarily on the ground that he being Chairman of the Registration Board at relevant time period has also become Chairman of DPC in violation of Drugs Act, 1976, in connivance with other members, he knowingly extended undue benefit to some pharmaceutical companies by increasing the price of medicines /drugs, on incorrect / incomplete data, inflated invoices. While scanning the entire record with the help of Special Prosecutor NAB, we have confronted him qua different provisions of DRAP Act, 2012 and Drugs Act, 1976 to satisfy this Court as to whether the pricing of drugs can be verified and checked under the law by the NAB in any manner, unless the 5th and 6th DPC results altered by the DRAP in any subsequent meetings, whereby the previous decisions have been declared illegal or passed contrary to law, but surprisingly no justiciable mechanism has been explained to consider that NAB has any authority to look into the pricing mechanism.

8. However, in order to understand, we have gone through the provisions of Drugs Act 1976, which primarily regulates the import, export, manufacture, storage distribution and sale of drugs. This law also provides the regulations of prohibition of import, manufacture of drugs, sale of drugs, registration of drugs through Registration Boards, Provincial Quality Control Board and Expert Committee, as such, in case any adverse decision is passed against any applicant, the law provides the concept of Appellate Board, where any decision of Central Licensing Board or Registration Board or Licensing Authority could be challenged, per se, the Appellate Board has been constituted by the Federal Government under the law. Similarly, the concepts of independent inspection, Federal Drug Laboratory, Provincial Quality Test Laboratory and Government Analyst have also been provided therein. This basic law also prohibits the import, manufacture and sale of drugs without the concept of licensing on prescribed conditions, testing, analysis, etc., even the offences have separately been provided under Section 27 of the Act, as a result whereof, the concepts of imprisonment, fine and forfeiture have been provided. In order to settle this question on criminal side, the Federal Government constituted a Drugs Court through notification with territorial limits in which the Court has to exercise its jurisdiction qua offences referred in the law. There is no bar to cancel the registration, licensing of manufacturer or importers on persons dealing with the drugs under this law.

9. Similarly, the second important law is the Drugs Act, 1976, whereby the concept of establishment of Drug Regulatory Agency of Pakistan has been provided for effective coordination and enforcement of Drugs Act, 1976 and to bring harmony in inter-provincial trade and commerce of drugs and therapeutic goods as well as to regulate, manufacture, import, export, storage, distribution and sale of therapeutic good and medical devices. Furthermore, the Authority has been constituted under Section 3 of the Act by the Federal Government through a notification, which is autonomous body under the administrative control of the Federal Government, comprising of CEO and different Directors, including Medical Devices and Medical Cosmetics Division, Costing and Pricing Division, Controlled Drugs Division, Licensing Division, Biological Division, Pharmaceutical Evaluation and Registration Division, Budget and Accounts Division, Ripymaceut Management Information Systems (MIS) Division, Quality Assurance and Lab Testing Division, Pharmacy Services Division, Administration, Health and OTC Division and Legal Affairs Division. The complete functions of the Authority have been provided in Section 7 of the Act, in which all administrative powers are with the Federal Government, where the DRAP shall provide advice to the Federal Government or Provincial Government, as the case may be, to monitor the enforcement of laws specified in the Schedule VI and collect relevant data and information, even the DRAP issues guidelines for licensing of therapeutic goods, registration of therapeutic goods, specifications and laboratory practices, prosecution and appeals under this Ordinance relating to Federal subjects, regulation and allocation of quota of narcotics and psychotropic drugs and precursor substances, regulation for pricing and mechanism for fixation of prices, determining standards for biological manufacturing and testing, coordinate at policy level, monitor and regulate the marketing practices as well as to develop standard operating procedures, etc. The law also provides a Policy Board for general direction and monitoring of authority comprising of 15 members. including the Federal Secretary of the concerned division, representatives of Ministry of Law and Justice Division, concerned secretaries of Provincial Governments, representatives of Federally Administered Tribal Area and six (06) experts from public and private sectors. That apart, Section 10 of the Act deals with the concept of meeting of Policy Board, which shall make regulation for conduct of its business, though the functions have separately been provided in Section 11 to frame policy and provide guidelines, based on global and recent trends, monitor all functions of authority and determine all fees and levies. This special law also provides offences and penalties in terms of Section 27 qua the individuals companies and even a special mechanism of complaint has been provided in terms of Section 30 of the Act to aggrieved person to file a written complaint with the Agency against contravention of any provision of this Ordinance or any law specified in the Schedule-VI. Furthermore, the DRAP is under obligation to observe the policy directives of the Federal Government in accordance with law and constitution of board in respect of any powers and functions.

10. The most important provision is Section 32 of the DRAP Act, 2012, which says that:

"The provisions of this Ordinance shall be in addition to and not in derogation of the provisions made in the Drugs Act, 1976 (XXXI of 1976) and any other law for the time being in force."

(2) In case of inconsistency between the provisions of this Ordinance and any other law for the time being in force, the provisions of this Ordinance shall prevail.

The above referred comparison provides extraordinary status to this law being special law in this specialized subject, whereas if this law is compared with the NAO, 1999, it provides to setup a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto, who have misused or abused the power, involved in misappropriation of property or taking kickbacks / commission. Section 3 of the NAO, 1999 also provides the overriding provision against any other law for the time being in force.

1. However, now the question arises that when speclized law is already available, whether NAO, 1999 could be applied and NAB authorities could enter into those questions, the answer to this effect is to be considered with the mandate provided in the preamble, which is specialized in character, whereas the DRAP Act, 2012 is to deal with enforcement of Drugs Act, 1976 and to bring harmony in inter-provincial trade and commerce of Drugs and therapeutic goods, which is not the function of NAB in terms of NAO, 1999, but in cases where corruption and corrupt practices has been demonstrated in such affairs, the NAB can enter into that arena, but the primary question arises as to whether the actions of officials in the case in hand while fixing prices of drugs have to be resolved by the NAB, the answer to said proposition is to be settled in terms of the facts available on record, as such, a detailed mechanism with respect to resolution of different issues by the Appellate Board has been provided in terms of Section 9 of the DRAP Act, 2012 along with the concept of complaint under Section 30, per se, if the same are seen in juxtaposition with the NAO, 1999, it appears that if any order or action has been taken by the DRAP in their meeting and subsequently endorsed by the Federal Government, the actions stand protected in terms of Section 34 of the DRAP Act, 2012, which states that:

No suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rules or regulations made there under.

1. This legislative intent extends a protection to the members of the DRAP, though the charge against the present petitioner is only to the extent misuse of authority as alleged by the NAB in their reference with specific accusations that the petitioner being the then Chairman of Drugs Pricing Committee in violation of Drugs Act, 1976 and in connivance with other members extended undue benefits to pharmaceutical companies by increasing prices of medicines / drugs on incorrect and incomplete data on inflated invoices. If this aspect is treated as a gospel truth, it is not the case of NAB authorities that members who have attended the 5th and 6th meeting are accused in this case, even otherwise, the record spells that in those meetings, especially in 5th DPC, held on 09.10.2012, same was chaired by the petitioner, whose decisions are validated through SRO No 1439, dated 23.10.2012, by the Federal Government, whereby the petitioner has rejected the recommendations of sub-committee as proposed by Dr. Muhammad Ali, and deferred all the items to be decided afresh by the DPC in forthcoming meeting, as also reflected from the noting of sub-committee, dated 05.12.2012 even at the time of said 5th meeting, DRAP Act, 2012 was not in field, rather it is DRAP Ordinance, whose actions have been protected under Section 40 of repeal and saving clause of DRAP Act, 2012, which reads that:

"All such actions of the Federal Government as mentioned in sub Section (2) since 20th April, 2010 shall be deemed to have validly made under this Act."

1. Similarly, in 6th meeting, dated 10.12.2012, under the new Act, the SRO No.41 showing DPC composition under the Chair of Joint Secretary, instead of Secretary, Ministry of National Health Services, Regulations and Coordination, dated 18.01.2013, was approved by the competent authority. The agenda had been placed by the Deputy Drugs Controller, Pricing Directorate for new registration, generic brands and hardship cases. The 6th meeting held on 22.01.2013 was also attended by Wasim Hasmi, Dr. Waseem, Muhammad Ghafar Pricing Directorate, Sara Awan Assistant Drugs Pricing Directorate, as such, all other members attended the DPC are responsible for verifying the documents of proposed agenda. In this 6th meeting of DPC, all members of DPC authorized the Chairman i.e. petitioner to decide himself after granting personal hearing to the individuals, as a result whereof, different drugs cases have been deferred, even some of the drugs which have been added in agenda by Dr. Muhammad Ali were rejected by the petitioner being the Chair of the Committee, even prices of different drugs have been reduced. This aspect shows the working with unanimous decision of all the committee members. In such scenario, the technical aspects could only be looked into by the DPC as well as by the DRAP, who are dealing with affairs.

2. On the other hand, the Special Prosecutor, NAB has drawn attention of this Court towards 5th meeting of DPC and referred the following drugs, prices of which have been increased.

| | | | | | | --- | --- | --- | --- | --- | | S.NO. | BrAND NAME/COMPOSITION | PREVIOUS PRICE | Competitors Brands | New price | | 1 | Venofer injection 5ml Each 1ml contains:- Iron (III)-hydroxide Sucrose complex...20mg (RG Pharmaceuticals Import) | Rs.366.20/ ampoule | Rs. 295.00/1's (Bosch) (Getz) (Himont) (Hilton) (AGP) Rs.200.00/ 1's (Bio Labs) | Rs. 520.00/1's being an FDA approved product. | | 2 | Envepe Tablet Each tablet contains:- Doxylamine Succinate.. 10mg Vitamin B6...10mg (Maple) | Rs. 114.00/30's | Itself | Rs.130.00/30's | | 3 | Maltofer Syrup Each ml contains: Iron (III) Hydroxide Polymaltose Complex 35.7mg corresponding to Iron (III)...10mg (Pharinatec) | Rs.188/120ml | Rs.133.01/120ml (Bio Labs) (Getz) Rs. 185.00/120ml (Hilton) Rs. 160.00/120ml (Tabros) | Rs. 200.00/120 ml | | 4 | Halothane Liquid M/s Akhas imported from M/s Piramal Healthcare Ltd. India | Rs. 1250 | No competitor | Rs. 1900/250 ml may be approved subject to verification if Halothane is still FDA approved for use in anesthesia. | | 5. | Aldomet Tablets 250mg Each tablet contains:-Methyldopa.. 250mg (OBS) | Rs. 390.00/100's | Itself Rs.390.00/100's (Valor) (Bio Labs) | Rs. 429.00/100's | | 6 | Inderal Tablet 40mg Akzo Nobel | Rs:118/50's (40mg) | Itself | Rs.153.00/50's | | 7 | Cycopin Mycophenolate Mofetil 250mg (Biocare Pharma) | Rs.1800/40's | Itself | Rs.2335.00/40's |

1. The above referred seven items along with other drugs prices, which are basis of the entire reference have been examined with the able assistance of learned counsel for petitioner as well as of the Special Prosecutor, NAB and it has been observed that the petitioner as Member of DPC agreed to increase the prices of these drugs with majority decision of other members, but surprisingly till date the DRA has not set aside the said decision, though we have confronted the Special Prosecutor NAB in this regard, who contended that in the year 2016 the DRAP undo the said pricing factor, but that is not the basis of instant reference, rather he.placed heavy eliance upon the details provided in NAB reference of each and every beneficiary pharmaceutical companies, who are accused in this reference and have gained profit by increase in prices of 36 drugs, including the seven referred above, but the basis of findings of the NAB in their inquiry and investigation are common in all these cases that the prices have been increase without fulfilling codal formalities, including the compilation of registration data and costing data and even some drugs have been referred in these meetings without placing agenda prior to said meeting. This aspect clearly establishes that mathematical calculation has been carried out by NAB authorities, though they are not expert in this regard and they calculated the amount without the help of any technical expert, but at this stage the respondent side has read over the statement of one witness namely Syed Hussain Khan, Deputy Drugs Controller / Technical Expert, whose findings are made basis of this reference, which are to the extent of DPC meeting, dated 22.01.2013, which are as under:

2. Most of the cases were considered for price increase without fulfilling codal formalities including completion of registration data and costing data etc by DPC

2. Cases were deferred without assigning any person.

3. Cases at S#47 and 48 of minutes were considered out of turn as these were present at S#63 and 107 of agenda respectively.

4. Cases at S#28 of agenda were considered without submission of new fees for re-consideration as the same were rejected in 5th DPC meeting.

5. Cases at S#23 (e), 24 (GSK) and 28 (Pharmadic) were considered without any request. However, letters were not issued.

6. Cases of Zam Zam Corporation and Halothane Liquid were considered despite not in agenda. However, letters for price increase were not issued to the firms.

1. Similarly, the findings regarding DPC meeting held on 09.10.2012 are as under:

2. Most of the cases were considered for price increase without fulfilling codal formalities including completion of registration data and casting data etc by DPC.

3. The price of Novamed Pharmaceutical (Pot.) Ltd. for its product Ciprojan Suspension 250mg was given on note sheet despite the fact that the same was not approved by DPC.

4. Item at S# 46 of agenda is missing from minutes of the meeting.

4. Items at S# 64-67 of agenda were given price increase of 30% as per DPC but in minutes two out of four items were referred to subcommittee without any reason

5. Thirteen products of Saffron were considered for price increase despite the fact that the same were not in agenda. However, the price increase was given to two products only.

1. Many of the cases were included in the agenda of the meeting and given price increase despite the fact that the fee for price increase was deposited on the day of meeting. These companies were given undue fuvors.

2. Whereas, in the third group the findings are to the extent of list of drugs, prices of which were increased illegally and without any justification by the DPC, whereby increase in the price of drugs has been obtained through fraud as the company submitted fake and incorrect costing data for obtaining price increase of its product. By comparing all these findings, if considered to be true, whether it is a criminal misconduct in terms of Section 9(a)(vi) of NAO, 1999, especially when the National Accountability (Second Amendment) Ordinance, 2019 has been promulgated. However, in order to understand the ground raised by the petitioner, it is necessary to reproduce the provisions of Section 9(a)(iv)(vi)(ix) and (xii) of the NAO, 1999, which are 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:-

(iv) If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage;

(vi) if he misuses his authority so as to gain any benefit to favour for 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)."

"Explanation added by National Accountability (Second Amendment) Ordinance 2019: For the purposes of this clause nothing shall be construed as misuse of authority by a holder of public office unless there is corroborative evidence of accumulation of any monetary benefit or asset which is disproportionate to his known sources of income or which cannot be reasonable accounted for."

ix) if he commits the offence of cheating as defined in Section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person.

(xii) "if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).

1. While considering the above stance, we have confronted the Special Prosecutor NAB on the basis of entire record of reference as well as of the investigation as to whether any incriminating article has been recovered from the petitioner through which it could be assumed that a misuse of authority has been exercised in this case by the petitioner, as a result whereof, he achieved an accumulation of any monetary or assets disproportionate to his known sources of income or which cannot be reasonably accounted for, whereby he conceded that there is no such evidence against the petitioner. In such scenario, if there is no direct charge of accumulation of wealth or kickbacks against the public servant, who has performed his duty in which certain irregularities or illegalities have been committed in course of discharge of his official duties, he may be liable for departmental action, but whether same could be converted into criminal action in terms of misconduct, the answer to this proposition has been given in explanation added by the National Accountability (Second Amendment) Ordinance, 2019, in which criminalization of such misconduct has been eliminated and specified only that if an official has gained something in lieu of his misconduct, which is not the case in hand, even it is not the case of NAB that all DRAP members have been declared accused in this case, rather some of the members have been excluded.

2. While considering the above detailed discussion, we are of the view that the relevant rules and regulations were applied by DPC and DRAP while allowing increase or decrease of certain drugs prices, however it is the case of NAB that majority of pharmaceutical companies, who entered into plea bargain or VR have tendered forged invoices of the imported raw material, which have been used as costing data for determination of pricing factor, such stance could have been considered against those pharmaceutical companies and not against the DPC members or DRAP as there is no element of corruption and corrupt practices, illegal gain or rendering any illegal benefit to anyone, including the accused persons, is visible from the record.

3. Surprisingly, the NAB authorities have based their entire case on the strength of Syed Hussain Khan, Deputy Drugs Controller/Technical Expert, who himself is not representing the DRAP and in our view, if the NAB authorities intended to seek criminal misconduct, they have to base their findings on the basis of subsequent DRAP decision qua the increase in drugs prices, which is not the case in hand.

4. The important aspect of this case is relating to misuse of authority in terms of Section 9(a)(vi) of the NAO, 1999, which becomes an offence of corruption and corrupt practices if it has been done with criminal intent to gain, render or attempt to gain any favour of himself or any other person, but this is not the case in hand. In order to draw a complete requirement of intent in cases of misuse of authority, the NAB is under obligation to bring such incriminating material, which is connected with mens rea, which is not made out in this case. It is also settled law that the offence of corruption and corrupt practices within meaning of Section 19(a)(vi) of the NAO, 1999 is not an offence of strict liability, therefore, the use of authority without object of illegal gain or pecuniary benefit of undue favour to person with ulterior motive, may not be a deliberate act to constitute an offence. The mens rea of offence under Section 9(a)(vi) of the NAO, 1999 forms two elements i.e. (1) conscious misuse of authority and illegal gain or (2) undue benefit, as such, in absence of any of these basic components of crime, misuse of authority is not culpable as held in 2008 SCMR 1118 (The State v. Muhammad Idrees Ghauri). We are also guided by another judgment of the apex Court, reported as PLD 2008 SC 166 (Mansur-ul-Haq v. Government of Pakistan), wherein it has been held that mere procedural irregularity in transaction would not be sufficient to constitute an offence under Section 9(a)(vi) of the NAO, 1999, This is essential to draw distinction between procedural irregularity and violation of substantial provision of law to determine the question of criminal liability in transaction. The procedural irregularity may bring an act done in official capacity within the ambit of misconduct, which is distinguishable from criminal misconduct or an act which may constitute an offence. Similarly, it has also been settled that where any person of authority acts in disregard of law, with conscious knowledge that his act is without authority of law, where there is conscious misuse of authority for illegal gain or undue benefit is proceedable under the NAO, 1999 as held in PLD 2016 SC 276 (The State v. Anwar Saifullah Khan).

5. While appreciating the legal position after the promulgation of National Accountability (Second Amendment) Ordinance, 2019, the National Accountability (Third Amendment) Ordinance, 2019 has also been promulgated, in which it has been settled that, "an advice, report or opinion rendered or given by public office holder or any other person in course of duty, unless there is sufficient evidence to show that holder of public office or any other person received or gained any monetary or other material benefit, from that advice, report or opinion, whether directly or indirectly, which the said recipient was otherwise not entitled to, receive". However, if such ingredients were missing the accused person could not be charged.

6. Now adverting to the decision of the learned Trial Court impugned in this writ petition, is considered to be relevant for our discussion, the relevant extract is as under:

It is note worthy that procedural irregularities and violation of substantial provision of law are distinct in determining criminal liabilities in transactions. Procedural irregularities might being an act done in official capacity within the ambit of misconduct which is distinguished from criminal misconduct.

According to explanation added in 9(a),(vi) of NAO, 1999, it is required that there must be corroborative evidence of accumulation of any monetary benefit of assets which is disproportionate to his known sources of income or which cannot be reasonably accounted for. There is no such allegation in this case. However, other sections of law are also cited in the reference. Seven pharmaceutical companies have entered into Plea Bargain and returned illegal gain amounting to Rs.979.66 million which they have obtained through wrong increase of prices of their products medicines by the 5th and 6th DPC Meetings, the accused/petitioner was Chairman Drug Pricing Committee (DPC). Statements of PWs under section 161 Cr.P.C. have been recorded. Obaid Ali, Federal Inspector of Drugs, DRAP, recorded his statement, he has inter-alia categorically stated that the member of Pricing Dr. Muhammad Ali Chairman of Sub-Committee gave him minutes of the meeting and asked him to put the same on note sheet but he/PW refused to do so, as the prices of certain companies were being increased without any justification.

1. While going through the above operative part of the impugned order, it is apparent that the learned Trial Court is convinced that there is no allegation of accumulation of any monetary benefit or asset which is disproportionate to his known sources of income or which cannot be reasonably accounted for, in such scenario, we are of the firm view that the opinion given by accused in DPC meeting qua fixation of any price of drugs on the basis of record, which is a simple case of misreading, non-reading, irregularity or official misconduct on departmental side without any criminal misconduct, though the same has not yet been proved through any subsequent DRAP meeting being the competent authority to declare that previous act of approving the increase in prices of drugs is based upon illegal costing data or based upon fake documents. It is also important to note to that not a single person filed a complaint in this regard, although the Policy Board is available to look into these factors, or for that matter the Appellate Board comprising of experts is also available, but no such fact findings has been managed or taken place in any manner. In such scenario, the increase in prices of drugs might based on incorrect data, which was not detectable by the petitioner at relevant time when the same was considered in the meeting, is not an unlawful act to criminalize the members of DPC or DRAP in any manner.

2025 P Cr. L J 1801

[Islamabad]

Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ

Ahsan Ali Gardezi---Appellant

Versus

The STate---Respondent

Criminal Appeal No. 417 and Jail Appeal No. 476 of 2023, decided on 16th June, 2025.

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

----S. 377-B---Sexual abuse---Appreciation of evidence---Ocular account proved---Child witnesses, evidence of---Reliance---Accused was charged for sexually harassing the minor daughter of the complainant---Minor victim confirmed that she along with her brother were sitting near the main door of the Masjid and her brother was also present with her, who was the second direct eye-witness of the incident---Victim was confronted with a specific and direct question regarding the identity of the accused, to which she responded that she remembered the face of the accused, who came at the time of occurrence---Victim did not see the accused person at the police station---Said statement confirmed that victim was mature enough to comprehend the situation and possessed a strong memory enabling her to identify the accused, who was later identified to be applicant---Furthermore, during cross-examination, the defence put additional questions, which were answered by the child victim in a very particular and detailed manner---Victim stated that there was a beard on the face of the accused---Accused was wearing a blue-coloured shirt with white stripes and yellow-coloured pants---Accused came on a bike, he parked his bike, then took a round and came near them---These were specific and distinctive features of the accused---Therefore, this part of the identification of the accused person, especially the appellant, had to be seen in comparison with the second eye-witness, who also reiterated his stance in affirmative evidence regarding the incident of 11.09.2022---Said witness confirmed that he, his sister and grandfather, went to offer Maghrib prayer at the mosque---Both said witness and his sister sat outside the mosque while their grandfather went inside---At that time, the accused started talking to them, asked various questions, and committed obscene acts with him and his sister---As per affirmative evidence of said witness, the accused kissed his sister, after which he started running; accused went away and came back, and then again he kissed his sister---Said affirmative evidence remained on record---During cross-examination of the direct witness,the appellant's side did not ask anything to dispel these elements of sexual abuse of the victim---Therefore, the two direct statements of the child witnesses were relevant for the entire crime scene---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly.

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

----S. 377-B---Sexual abuse---Appreciation of evidence---CCTV footage on record---Corroborating the ocular account---Accused was charged for sexually harassing the minor daughter of the complainant---Statements of two eye-witnesses had been viewed in the context of the CCTV footage collected by the Investigating Officer, which was played in the Trial Court---Court had also reviewed the said video, which was collected from a plaza, located in front of the mosque, where a camera had been installed---Video footage of approximately 31 minutes, obtained from a camera installed in the market on a plaza in front of the mosque (approximately 30 to 40 yards away), confirmed that a man approached the children and also verified the conversation and, astonishingly, both minors left the bench in front of the mosque; however, the person chased them---Most astonishing scene in the video footage was when the victim girl hit the accused multiple times to express her anger and reaction against the accused in an attempt to stop him from harassing her, yet the accused continued his actions---Said incident corroborated the stance taken by both the victim and the direct witness, aged about 07 years, based on the CCTV footage collected by Investigating Officer---Said corroboration left nothing in favor of the appellant---As per the forensic report, the CCTV footage was found to be genuine, without any editing or tampering---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly.

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

----S. 377-B---Sexual abuse---Appreciation of evidence---Child witness, evidence of---Reliance---Scope---Accused was charged for sexually harassing the minor daughter of the complainant---Statement of the child witness played a significant and key role in this case, where usually no direct evidence was available in incidents of sexual abuse---However, in the present case, the corroborative pieces of evidence supported the stance taken by both the victim and her brother, which was further corroborated by the testimonies of their father and maternal grandfather---In the present case, it was clearly established from the testimony and cross-examination that the child victim was not tutored, nor was his brother tutored in any manner---Court also observed from the testimony of the victim that the evidence was given without hesitation and without the slightest suggestion of tutoring or anything of any sort---Furthermore, there was corroboration of the evidence, in so far as it narrated the actual facts, which was the key requirement---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly.

Raja Khurram Ali Khan v. Tayyaba Bibi PLD 2020 SC 146; Maqsood Khan v. The State 1982 SCMR 757 and Mst. Imam Sain v. The State 2015 YLR 17 rel.

(d) Criminal trial---

----Child witness, evidence of---Scope---Evidence of a child witness is a delicate matter and normally, it is not safe to rely upon it unless corroborated, as a rule of prudence---Great care is to be taken to ensure that the evidence of a child is free from any element of coaching.

The State through Advocate General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.

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

----S. 377-B---Qanun-e-Shahadat (10 of 1984), Art. 22---Sexual abuse---Appreciation of evidence---Test identification parade---Scope---Accused was charged for sexually harassing the minor daughter of the complainant---Record showed that the victim, identified the appellant in the identification parade conducted in District Jail---Victim categorically explained the role of the appellant that he forcibly kissed her three or four times on my lips---Brother of victim and victim got up and tried to push accused away---Victim even tried to hit that person, upon which he started laughing and asked her to hit him more---Said aspect of the statement, regarding the role described by the victim, was verified through the CCTV footage and further explained by the Investigating Officer---Therefore, the Hig Court firmly believed the identification to be correct under the law and there was no indication of tutoring or tampering---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly.

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

----S. 377-B---Criminal Procedure Code (V of 1898), S. 164---Sexual abuse---Appreciation of evidence---Statement of victim---Scope---Accused was charged for sexually harassing the minor daughter of the complainant---Victim recorded her statement under S.164,Cr.P.C., before Magistrate---In order to ease the victim and provide a conducive environment for restoring her confidence, a female Magistrate was also called for recording the statement---Victim's statement was rightly recorded, clearly describing the incident---Victim stated that the accused forcibly kissed her on the lips 03/04 times, after which she and her brother pushed and hit him multiple times and ran on the other side, but he followed them---Similarly, the statement under S.164,Cr.P.C., served as another piece of corroborative evidence supporting the prosecution's case---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly.

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

----S. 377-B---Criminal Procedure Code (V of 1898), S. 342---Sexual abuse---Appreciation of evidence---Defence plea of alibi taken by accused while recording statement under S.342, Cr.P.C. not proved---Accused was charged for sexually harassing the minor daughter of the complainant---Appellant, in his statement recorded under S.342,Cr.P.C., denied the occurrence of the incident and also produced three defence witnesses to prove his alibi---All three defence witnesses failed to create any impact in that strong case of the prosecution, which was supported by the victim, direct evidence and corroborative CCTV footage---In addition to the above, the appellant himself got recovered the blue-coloured T-shirt with lines, skin-coloured pants and black-coloured cap from his room, which also constituted supporting and corroborative evidence against the appellant---Circumstances established that the prosecution had successfully proved the case beyond any shadow of doubt---Appeal against conviction was dismissed, accordingly.

Muhammad Abdul Rafeh for Appellant.

Faisal Nawaz for Appellant (in Jail Appeal No. 476 of 2023 at State expenses).

Muhammad Wajid Munir, DDPP for the State.

Rehan Seerat and Ch. Hayat Kamil for the Complainant.

Ijaz and Maryam Sikandar victim's parents present.

Zulfiqar Ali, S.I.

Assisted by Ms.Aymen Aziz, Law Clerk, Islamabad High Court.

Date of hearing: 12th May, 2025.

Judgment

Mohsin Akhtar Kayani, J.---Through the instant appeal, the appellant has assailed the judgment dated 23.10.2023, passed by learned Additional Sessions Judge GBV Court (West), Islamabad, whereby appellant has been convicted in case FIR No.781 dated 11.09.2022, under Section 377-B P.P.C, P.S Ramna, Islamabad and sentenced to Fourteen (14) Years imprisonment with fine of Rs.10,00,000/-. In case of default in payment of fine, he shall further undergo 03 months S.I. The benefit of Section 382-B Cr.P.C. was also extended to the appellant.

1. Brief facts referred in the instant appeal are that the complaint, Exh. P.A has been lodged by Muhammad Ijaz-ul- Haq, PW-01, with the allegation that on 11.09.2022, he along with his wife Maryam Sikandar and two children, namely Harim Haq, aged about 10/11 years, and Fayyaz-ul-Haq, aged about 07 years, went to the house of his wife's father, namely Sikandar Hayat, PW-03, the maternal grandfather of the children. On the same day, at Maghrib time, the maternal grandfather Sikandar Hayat and the two children, Harim Haq and Muhammad Fayyaz, went to offer Maghrib prayer at Jamia Masjid Ghosia, situated at Saba Market, Street No.111, Sector G-11/3, Islamabad. The grandfather of the children went inside the Masjid for prayer, while the two children were sitting outside the Masjid on a stone Bench. In the meanwhile, an unknown accused person came on a motorcycle and started sexually harassing his daughter. He kissed the victim on her lips and also touched her private parts, thereafter left the spot. The daughter narrated the said incident. The complaint, Exh. P.A, was converted into FIR No.781, dated 11.09.2022, under Section 377-B, through Exh. P.A/1 by the police. The Investigating Officer, Asif Khan S.I, PW-12, started the Investigating after the registration of FIR by the duty officer Zafar Ali S.I, PW-04. The Investigating Officer got the statement of the victim, Harim Haq, recorded under Section 164 Cr.P.C before the Magistrate, PW-11, and also collected the CCTV footage from different cameras installed near the place of occurrence. Specifically, Ayaan Plaza, which is in front of the mosque, where the entire incident was captured in the CCTV footage obtained from the security supervisor, Muhammad Yaqub, in USB-1. He also collected the CCTV footage from cameras installed at House Nos.87 and 88, Street No.111, G-11/3, Islamabad, and verified that the accused was wearing a blue-coloured shirt, yellow skin pant, and a black-coloured cap. These videos were taken through USB-2. He also inspected another CCTV footage from a nearby street and, on the basis of identification features and his Investigating, apprehended Ahsan Ali Gardezi (appellant), on 03.10.2022. Upon his personal search, he found cash amounting to Rs.600, Exh.P3. He also transmitted two USBs containing CCTV footage to the FIA, Cyber Crime Wing for forensic analysis. On the disclosure of the appellant, the place of occurrence was identified, an identification memo was prepared, and the clothes worn by the appellant at the time of the occurrence only, a blue shirt with lines (P12), skin-colored pants (P13), and a black cap (P14) were recovered from his house at Shah Allah Ditta on his own pointation from his room. The final report under Section 173 Cr.P.C. was submitted after recording the statements under Section 161 Cr.P.C of all the witnesses.

2. The trial Court framed the charge on 30.01.2023 under Section 377-B P.P.C against the appellant, whereby he denied the charge and claimed trial. Consequently, 12 prosecution witnesses have been recorded along with documentary evidence Exh.PA to Exh.PR and the appellant also took defence. Therefore, three defence witnesses DW-01 to DW-03 were also recorded along with the statement Section 342 Cr.P.C, whereafter trial Court convicted the appellant accordingly.

3. Arguments heard and record perused.

4. Perusal of record reflects that the entire case of sexual abuse revolves around the allegation of the victim Mst. Harim Haq (DW-02), a minor aged 10/11 years, who along with her younger real brother Muhammad Fayyaz Ul Haq, aged 7 years (DW-05), in the company of her maternal grandfather Sikandar Hayat (DW-03), on 11.09.2022, went to offer Maghrib prayer in the nearby mosque when the appellant sexually abused the victim Mst. Harim Haq.

5. In order to prove this case, the prosecution supported their case through evidence of maternal grandfather Sikandar Hayat, PW-03, who confirms that on 11.09.2022, her daughter Maryam Sikandar and son-in-law came to his house with two minor children Harim Haq and Fayyaz Ul Haq, DW-02 and DW-05 respectively and on the same day, when he went to offer Maghrib prayer, both the children accompanied him at Saba Market, Street No.111, Sector G-11/3, Islamabad, Masjid Ghosia. He went inside and two minor grandchildren were sitting outside on a stone Bench and during the said period, the accused sexually abused the minor victim. PW-03 Sikandar Hayat was cross-examined at length, who confirmed that the children were sitting on the right side bench from the entrance of the Masjid and confirmed that minor told him that "the accused had touched and pulled the victim and kissed the victim at the time of occurrence". Similarly, the complainant, father of the victim Ijaz Ul Haq, PW-01 has also given the similar statement that her daughter told him that "the said accused parked his bike and came near to the victim Harim Haq and sit next to her". He started to commit obscene act with my daughter. He kissed the victim on her lips and also touched her private parts and thereafter left the spot when my daughter started crying". This statement of two witnesses require direct evidence, which has been narrated by the minor victim PW-02 Harim Haq, which played a key role in the entire prosecution case. Therefore, her statement is as under:

I along with my maternal grandfather and my brother Muhammad Fayyaz ul Haq went to offer Maghrib prayer at Jamia Masjid Ghosia situated at Saba Market Street No.111, Sector G-11/3, Islamabad. My grandfather went inside the Masjid for prayer while I and my brother were sitting on a stone bench outside the Masjid in front of the football ground. In the meanwhile, an unknown accused (who was later identified by me as Ahsan Ali) who was wearing blue color shirt with stripes and skin yellow color pant came towards us on his bike with unknown number. The said accused parked his bike. After sometime he came near to me and sit next to me. He started talking to me and started asking different questions. Thereafter the accused parked his bike. Thereafter the accused forcefully kissed me on my lips 03/04 times and I and my brother pushed him away and hit him multiple times. I and my brother ran to save ourselves but he followed us there. Then we ran back towards Masjid but he followed us there as well. The accused then went towards his bike and came back with a leaf in his hand and said that if I could catch that leaf he would go away. I did not catch that leaf and we were trying to run inside the Masjid but the accused caught me and picked me up. He touched my private parts. He then touched my ears because I was wearing gold earrings. As the prayer was about to get over, the accused asked me to go with him to drink water at the side of the Masjid but I refused. The accused then decamped from the spot as the prayer was about to get over.

1. The minor victim (PW-02) was confronted with certain questions by the Court before recording her statement, and the trial Court was of the view that the minor understood the nature of every act and gave rational answers to the questions put to her. Therefore, considering the above, the appellant's side cross-examined the minor victim (PW-02). During her testimony, she confirmed the facts regarding accompanying her maternal grandfather for the Maghrib prayer and also confirmed that there is a market in front of the Masjid. She stated that few people were passing by the market and that people were also entering and exiting the mosque. She confirmed, "We were sitting near the main door of the Masjid." She further confirmed, "it is correct that my brother Fayyaz was also present with me, who is the second direct eye-witness of the incident," and also stated, "We were sitting on the right bench of the Masjid."

2. The victim was confronted with a specific and direct question regarding the identity of the accused, to which she responded, "I remember the face of the accused, who came at the time of occurrence. I did not see the accused person at the police station." This statement confirms that she is mature enough to comprehend the situation and possesses a strong memory, enables her to identify the accused, who was later identified to be Ahsan Ali Gardezi. Furthermore, during cross-examination, the defence counsel put additional questions, which were answered by the child victim (PW-02) in a very particular and detailed manner. She stated, "There was a beard on the face of the accused. The accused was wearing a blue-coloured shirt with white stripes and yellow-coloured pants. The accused came on a bike. He parked his bike, then took a round and came near us." These are specific and distinctive features of the accused.

3. Therefore, this part of the identification of the accused person, especially the appellant, has to be seen in comparison with the second eye-witness, Muhammad Fayyaz-ul-Haq (PW-05), who also reiterated his stance in affirmative evidence regarding the incident of 11.09.2022. He confirmed that he, along with his sister and grandfather, went to offer Maghrib prayer at the mosque. Both he and his sister sat outside the mosque while their grandfather went inside. At that time, the accused started talking to them, asked various questions, and committed obscene acts with him and his sister. As per his affirmative evidence "The accused kissed my sister. I started running. The accused went away and came back, and then again he kissed my sister." This affirmative evidence remains on record.

4. During cross-examination of the direct witness PW-05, the appellant's side did not ask anything to dispel these elements of sexual abuse of the victim (PW-02), despite the eye-witness confirming that bench was on the right side of the mosque's door. He stated that "It is correct that there is a market in front of the mosque. People were coming and going out of the mosque at the time of the occurrence. I made hue and cry when the accused came." He further stated "It is correct that my sister also made hue and cry. The accused kissed my sister. The accused kissed my sister on her lips and went away. Then he again came back and kissed my sister." He also confirmed "I did not see the accused present at the police station when I went there." Therefore, the two direct statements of the child witnesses are relevant for the entire crime scene, and these statements have been viewed in the context of the CCTV footage collected by the Investigating Officer, which was played in the trial Court. This Court has also reviewed the said video, particularly Exh. P1, which was collected from Ayaan Plaza, located in front of the mosque, where a camera had been installed in Saba Market, G-11/3, by Investigating Officer Asif Khan (PW-12). He made a serious effort by collecting three other video clips P1 and P2 in the form of a USB, which were played before us. These pertain to House Nos.87 and 88, Streets Nos. 111, 112, and 115, Sector G-11/3, Islamabad.

5. The video footage of approximately 31 minutes, obtained from a camera installed in the market on a plaza in front of the mosque (approximately 30 to 40 yards away), confirms that a man approached the children. It also verifies the conversation, and, astonishingly, both minors left the bench in front of the mosque; however, the person chased them. The most astonishing scene in the video footage is when the victim girl hit the accused multiple times to express her anger and reaction against the accused in an attempt to stop him from harassing her, yet the accused continued his actions. This incident corroborates the stance taken by both the victim, PW-02 Harim Haq, and the direct witness, Muhammad Fayyaz ul Haq (aged about 07 years), PW-05, based on the CCTV footage collected by Asif Khan, PW-12. This corroboration leaves nothing in favor of the appellant. Therefore, the statement of the child witness played a significant and key role in this case, where usually no direct evidence is available in incidents of sexual abuse.

6. However, in the present case, the corroborative pieces of evidence support the stance taken by both the victim and her brother, which is further corroborated by the testimonies of their father and maternal grandfather, Sikandar Hayat. In this context, the testimony of the child witness must be examined in light of the standard and threshold laid down in PLD 2020 SC 146 (Raja Khurram Ali Khan v. Tayyaba Bibi). The Supreme Court in that case emphasized that, under Article 3 of the Qanun-e-Shahadat Order, 1984, the essential condition for a child or any person to appear and testify as a witness is that the individual must possess sufficient intelligence and understanding to comprehend the questions put to them and must be capable of giving rational responses thereto. This standard has come to be known as the rationality test, and the judicial practice that has evolved over time requires that the trial Court conduct this assessment prior to recording the evidence of the child witness. In the present case, this practice was duly followed. The trial Court rightly held that the victim child successfully passed the rationality test, demonstrating a clear understanding of the nature of the act and providing a coherent and comprehensive account of the incident. The presiding Judge ensured, before recording the testimony that the child was competent to testify in accordance with the criteria laid down by the superior Courts.

7. No doubt, the evidence of a child witness is a delicate matter, and normally, it is not safe to rely upon it unless corroborated, as a rule of prudence. Great care is to be taken to ensure that the evidence of a child is free from any element of coaching, as held in PLD 1995 SC 1 (The State through Advocate General, Sindh, Karachi v. Farman Hussain and others). In the present case, it is clearly established from the testimony and cross-examination that the child victim was not tutored, nor was his brother (PW-05) tutored in any manner. This Court also observed from the testimony of the victim that the evidence was given without hesitation and without the slightest suggestion of tutoring or anything of any sort. Furthermore, there is corroboration of the evidence, in so far as it narrates the actual facts, which is the key requirement. The real test is how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits with the evidence and circumstances of the case as held in 1982 SCMR 757 (Maqsood Khan v. The State).

8. The rule of caution in such type of cases is that where child is the witness or the eye-witness, who appears in the witness box is intelligent enough to understand as to what evidence he is giving, he should be able to give rational answers to the question as held in 2015 YLR 17 (Mst. Imam Sain v. The State).

9. In view of the above principles, this Court appreciates the effort made by the Investigating Officer (PW-12), who was cross-examined at length with reference to the CCTV footage (USB-1, P1) collected by him during the course of the Investigating, which led to the arrest of the appellant Ahsan Ali Gardezi. He confirmed that Ayaan Plaza is situated in front of Jamia Masjid Ghosia, the place of occurrence.

10. The CCTV cameras installed on Ayaan Plaza by the security company "Double Tab" covered the place of occurrence. The footage from these cameras was collected and taken into possession through a USB device. During cross-examination in the trial Court, PW-12 (Investigating Officer) stated "that the accused seen on the motorcycle in the CCTV footage was wearing a black cap. The registration number of the motorcycle was not clearly visible in the footage". He was also confronted with questions regarding the alleged obscene act, to which he responded, "the accused is visible in the CCTV footage collected from the camera installed at Ayaan Plaza while committing the alleged obscene act". It is further confirmed that the footage shows the accused arriving on a motorcycle, parking it adjacent to the wall of the Masjid, and then approaching the victim and her brother, who were sitting on a cemented block. The accused is seen touching different parts of the victim's body, and the victim is visibly pushing him away. The accused is clearly seen touching the victim, though I cannot specify which part of the body was touched at the time of the occurrence.

11. This aspect was verified during the Investigating and is supported by the testimony of victim (PW-02) and the Investigating Officer. He was again confronted with a similar question and reaffirmed that the accused is visible while touching the victim. Regarding the facial features, he confirmed that the facial features of the accused are somewhat visible in the CCTV footage captured by the camera installed at House No. 87/88, Street No.111, Sector G-11/3, Islamabad. He further confirmed that a forensic analysis of the CCTV footage was conducted.

12. As per the forensic report, the CCTV footage was found to be genuine, without any editing or tampering. In addition to the above evidence, the victim, Harim Haq (PW-02), also identified the appellant in the identification parade conducted in District Jail, Adayala, through Exh. PP/1-5. The victim categorically explained the role of the appellant that "After this, he forcibly kissed me three or four times on my lips. My brother and I got up and tried to push him away. I even tried to hit this person, upon which he started laughing and asked me to hit him more." This aspect of the statement, regarding the role described by the victim, was verified through the CCTV footage and further explained by the Investigating Officer (PW-12). Therefore, this Court firmly believes the identification to be correct under the law, and there is no indication of tutoring or tampering.

13. Even otherwise, victim also recorded her statement under Section 164 Cr.P.C. before Magistrate Abdullah Khan (PW-11). In order to ease the victim and provide a conducive environment for restoring her confidence, a female Magistrate, Miss Nihal Hafiz (AC Pothwar), was also called for recording the statement. The victim's statement was rightly recorded, clearly describing the incident. She stated that the accused forcibly kissed her on the lips 03/04 times, after which she and her brother pushed and hit him multiple times and ran to the other side, but he followed them. Similarly, the statement under Section 164 Cr.P.C., marked as Exh.PQ/1-5, serves as another piece of corroborative evidence supporting the prosecution's case. The appellant, in his statement recorded under Section 342 Cr.P.C., denied the occurrence of the incident and also produced three defence witnesses to prove his alibi, namely Zamir Abbas (DW-01), Syed Naveed Hussain (DW-02), and Malik Mohammad Sajjad (DW-03).

14. But all three defence witnesses failed to create any impact in this strong case of the prosecution, which is supported by the victim, direct evidence, and corroborative CCTV footage. In addition to the above, the appellant himself got recovered the blue-coloured T-shirt with lines (P12), skincoloured pant (P13), and black-coloured cap (P14) from his room, which also constitute supporting and corroborative evidence against the appellant.

15. Speaking of CCTV, it is pertinent to mention that it has become a practice that the CCTV footage obtained from private premises such as houses, shops, plazas or buildings is often excluded solely due to the absence of testimony from the premises' owner, despite the availability of a forensic report. However, it is important to understand that such owners are not the authors of the footage; they did not create or edit it they merely own the place where the camera was installed. This is fundamentally different from a situation where someone personally records a video using a phone or camera. In cases where CCTV footage is submitted along with a forensic report from the National forensic Agency, which confirms the footage has not been edited, tampered with, or AI-generated, that report should be treated as per se admissible evidence. Under Section 510 Cr.P.C, forensic reports are admissible without the expert being called as a witness, unless the court deems it necessary in the interest of justice. Section 4(2) of the NFA Act 2024 further confirms that "the report and opinion of the Agency shall be an admissible evidence in courts and tribunals for the purposes of section 510 of the Code of Criminal Procedure, 1898 (Act V of 1898) and Articles 59 and 164 of the Qanun-e-Shahadat Order, 1984 (P.O. No. 10 of 1984)." The aspect of per se admissibility of expert report is affirmed by the Supreme Court in PLD 2021 SC 362 (Ali Haider alias Pappu v. Jameel Hussain and another) that such forensic reports are admissible on their own and should be used to expedite criminal trials. Therefore, once the authenticity and integrity of CCTV footage are confirmed through forensic analysis, there should be no legal requirement to summon private individuals (like homeowners or shopkeepers) merely to validate footage they neither created nor altered.

16. Now adverting to the concept of sexual abuse as defined in Section 377-A P.P.C, it is a composite offence encompassing multiple acts, including but not limited to fondling, stroking, caressing, exhibitionism, voyeurism, or any obscene or sexually explicit conduct, or the simulation thereof whether committed independently or in conjunction with other acts, with or without consent, and regardless of whether the victim is under the age of 18. In a patriarchal and conservative society like Pakistan, where honor-based, silence and victim shaming culture are prevalent, the sensitive issues like Child Sexual Abuse (CSA) go unreported. Therefore, a small and limited scholarship is available regarding the CSA victims. There are several factors that can be the reasons of CSA but the most genuine element is the vulnerability of children as they are incapable to defend themselves. The form of CSA ranges from improper/bad touch to Rape or Sodomy. The grave offences like Rape/sodomy get the highlight being serious in nature however, the others being apparently mild in nature are suppressed or compromised. This compromise or silence on the part of parents or the child/victim does not diminish the after effects on the mental health of the child/victim-survivor. The CSA has the potential to cause lifelong psychological effects bind with stigma and mental trauma. These psychological revenge from guilt to shame, confusion, self-destructive behavior, feelings of isolation, social anxiety, feeling of stigma, post traumatic symptoms, depression, helplessness, aggressive behaviors, negative attributions, personality disorders and behavioral problems, substance abuse, poor self-esteem, sexual problems, divorce, eating disorders and mental illness. According to an annual report of an NGO name "Sahil" has shown that the cases of CSA increased from 2011 to 2018. The number of cases in the year 2010 was 2,252 whereas in 2016 the number increased to 4,139.

17. Parenting is a skill, which not all the parents in Pakistan are familiar with, they trust almost everyone in their families with their children and leave children with them. According to studies sexual abuse is more likely to be faced by the acquaintances however, it is both 'intra' and 'extra' familial phenomenon. It is the duty of the parents to talk about "good touch" and "bad touch" with their children and do not let them stay in darkness or unattended. The confidence to report abuse comes from the strong upbringing.

18. Other than strong parenting two most important preventive measure of CSA are educational programs and, management programs. Educating children in schools, building children knowledge about abuse and educating them preventive measures are very effective. The second measure that schools can take is teaching children management by making them responsible and how to deal with strangers and family members. In essence, to curb CSA an integrated approach and collective effort is required from parents, teachers at schools and Madrassah and the state departments. Their collective effort is required to protect the children of the state from all sorts of abuse including sexual abuse which will protect them from mental torture, trauma, depression and other psychological issues and will protect their mental health.

19. We have also gone through the domestic and international legislation that protect the children rights and put an obligation on the state to provide protection to the children of the State. As far as domestic legislation is concerned, in 2018 an ICT Child Protection Act 2018 was promulgated to protect the children in the Islamabad capital territory from all forms of physical or mental violence, injury, neglect, maltreatment, exploitation and abuse. Similarly, international Conventions and Declarations also talk about the protection of children from any form of abuse and put an obligation on the head of state to protect the children. From the text/language of the Convention it becomes apparent that the core duty is of the state to protect the children as they are the children of the State. Declaration of The Rights of the Child 1959 says that the child must be protected from all forms of neglect, cruelty and exploitation. Other than this the Convention on the Rights of the Child, 1989 is a comprehensive treaty on children's rights between the party state. State parties should take reasonable measure to protect the children from all forms of abuse and exploitation. Children should be protected from sexual abuse. Children are sexually abused by legal guardian, their parent and other person who has the care of child. Judicial involvement should be necessary to protect children from abuse (Article 19). The convention assigns duty to government to provide protection and assistance to children who deprived of a family (Article 20).

20. State Parties of convention have duty to protect children who work in hazardous place. Children should be protected from economic exploitation. This exploitation interferes in the education of children and very harmful to the health, physical, moral, mental and social development of children (Article 32). State parties use reasonable measures to protect children from abduction, sale and traffic for any purpose (Article 35). The Convention provides that state parties must take reasonable measure to protect children from child pornography, child prostitution. It means state parties should protect children from all forms of sexual exploitation (Article 34). Any child suffers from injury from any types of exploitation or abuse, torture, any type of cruel, inhuman treatment and punishment, shall be protected by state parties of convention (Article 37 (a) and (b)).

21. In the present case, the narration of events provided by the victim confirms that, in the 31-minute CCTV footage, the victim was harassed, inappropriately touched on private parts, and kissed 03/04 times by the appellant. Such conduct clearly falls within the ambit of sexual abuse as defined under Section 377-A P.P.C.

22. Now the question arises what sentence should be awarded to such a type of accused person? We have considered the definition and the sentence provided in law, which is not less than 14 years. The minimum punishment prescribed by the legislature for such offences is intended to protect minor children, who are helpless and cannot defend themselves. Therefore, such perpetrators child molesters cannot be allowed to go scot-free, and exemplary punishments be awarded to safeguard the future of children in Pakistan. In this regard, the sentence awarded by the trial Court fulfills the requirements of the case, and the prosecution has successfully proved the case beyond any shadow of doubt.

23. In view of the foregoing discussion, no ground for interference with the judgment of the learned trial Court has been made out by the appellant. Consequently, the instant appeal stands DISMISSED and the sentence awarded to the appellant is hereby MAINTAINED.

24. Before parting with this judgment, it is appropriate to issue certain non-binding recommendations for the Government to consider. It is suggested that Sections 377-A and 377-B of the Pakistan Penal Code be reviewed, as they presently cover a broad range of sexual acts without distinction. Section 377-A includes a wide spectrum of offences, ranging from fondling to sexually explicit conduct. These offences differ significantly in nature and gravity, yet they are consolidated under the single heading of 'sexual abuse', carrying a uniform punishment bracket of 14 to 25 years, with no discretion left to the Court.

25. The following suggestions are made to amend the law keeping in view the gravity of the act and the punishment for each act under sections 377-A and 377-B P.P.C should be separately categorized:-

2025 P Cr. L J 1890

[Islamabad]

Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ

Haneef Ahmed---Appellant

Versus

The State---Respondent

Jail Appeal No. 217 of 2024, decided on 30th June, 2025.

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

----S. 9(1), Sr. No. (6)(c)---Possession of narcotic substances---Appreciation of evidence---Safe custody of samples and its safe transmission to the laboratory proved---Prosecution case was that 1025 grams heroin powder was recovered from the possession of accused-appellant---Prosecution witnesses testified that on the fateful day, appellant was apprehended and 1025 grams heroin was recovered from a blue coloured shopper bag held by the appellant in his left hand---Complainant, Moharrar Malkhana and Investigating Officer also testified regarding safe custody and safe transmission of the recovered narcotic and sample to the Malkhana and of the sample parcel from the Malkhana to the Forensic Science Agency---Prosecution witnesses fully corroborated each other---No material discrepancy between the evidence of the complainant, Moharrar Malkhana and Investigating Officer was found as alleged by the appellant---Moharrar Malkhana stated in his cross-examination that he handed over the sample parcel to complainant for onward transmission to Forensic Science Agency on the direction of Investigating Officer---Similarly, complainant also stated that the Moharrar Malkhana handed over the sample parcel to him for onward transmission to Forensic Science Agency on the direction of Investigating Officer---Investigating Officer stated that he collected the sample parcel from the Moharrar Malkhana and handed it over to complainant---Minor variation in witness testimony, which was natural, did not make recovery doubtful or vitiate the trial---All the witnesses were subjected to cross-examination but they remained consistent in all material aspects like date, time, place, manner and quantity of recovery of narcotic from the appellant and nothing came to light to suggest that the appellant was falsely implicated in the case---Recovered substance was produced and the forensic report confirmed that the substance was indeed heroin powder---Appeal against conviction was dismissed, in circumstances.

Ahmed Ali and another v. The State 2023 SCMR 781 and Asif Ali and another v. The State through Prosecutor General Punjab 2024 SCMR 1408 ref.

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

----S. 9(1), Sr. No. (6)(c) & 25---Possession of narcotic substances---Appreciation of evidence---Police witnesses, evidence of---Scope---Prosecution case was that 1025 grams heroin powder was recovered from the possession of accused-appellant---Police Officials were as good as private witnesses as the provision of S.103, Cr.P.C., was not applicable to cases under CNSA, 1997, by virtue of S.25 thereof and their testimony could not be discarded merely for the reason that they were Police Officials unless accused persons prove their mala fide or ill-will towards the accused---Appellant in the instant case had not even alleged any enmity of the Police Officials against him let alone prove it---In his statement under S. 342 Cr.P.C accused stated that the reason for the registration of the case and deposition of the witnesses against him was to show their efficiency to the highups---However, the appellant failed to show any pressure on the police or any other cause to show that they were under any compulsion to show such efficiency that too by false implication against someone with whom they had no enmity---Appeal against conviction was dismissed, in circumstances.

Muhammad Tanveer v. The State 2008 MLD 602 rel.

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

----S. 9(1), Sr. No. (6)(c)---Possession of narcotic substances---Appreciation of evidence---Alleged contradiction in the prosecution case---Incopnsequential---Prosecution case was that 1025 grams heroin powder was recovered from the possession of accused-appellant---It was alleged by the defence that there was variation between the FIR and the Forensic Report in respect of the colour of the recovered substance---Validity---First Information Report had been registered in Urdu which described the recovered substance as light brown---Recovery Memo had also been recorded in Urdu which too described the recovered substance as light brown---Forensic Report which was in English described the substance as 'off-white' in color---Counsel for the appellant was asked to translate off-white in Urdu but she could not come up with an exact equivalent---On the other hand, the color 'off-white' was defined in the Concise Oxford English Dictionary, Eleventh Edition as a white color with a grey or yellowish tinge---Urdu word used in the FIR to describe the colour of the recovered substance could, for lack of a better alternative in the Urdu language, serve to loosely described the colour 'off-white' as well---Therefore, this could not be concluded as a material contradiction especially considering that safe transmission was otherwise established and no question regarding this aspect was put to the witnesses in cross-examination---Appeal against conviction was dismissed, in circumstances.

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

----S. 9(1), Sr. No.(6)(c)---Possession of narcotic substances---Appreciation of evidence---No delay in sending the sample parcel to the laboratory for analysis---Prosecution case was that 1025 grams heroin powder was recovered from the possession of accused-appellant---In the instant case, the alleged recovery was admittedly made at 6:50 pm on 5-07-2023, which was a Wednesday (not Tuesday as alleged by the appellant)---Thus 72 hours expired at 6:50 pm on 8-07-2023 which was a public holiday on account of being Saturday---Samples were sent for forensic on the following Monday which was the first working day after the two public holidays and as such there was no delay---Appeal against conviction was dismissed, in circumstances.

Ms. Hira Ashraf and Faisal Bin Khursheed for Appellant.

Muhammad Wajid Munir, Deputy District Public Prosecutor and Muhammad Imran, S.I, P.S Khanna for the State.

Date of hearing: 7th May, 2025.

Judgment

Saman Rafat Imtiaz, J.---This Criminal Appeal has been filed by the Appellant [Haneef Ahmed son of Rasheed Ahmed] against the Judgment dated 08.05.2024 ("Impugned Judgment") passed by the learned Judge Special Court, (CNSA), Islamabad, whereby the Appellant has been convicted under Section 9(1)(6)(c) of the Control of Narcotic Substances Act, 1997 (CNSA, 1997) in the case of FIR No.614/2023 dated 05-07-2023 registered at P.S. Khanna, Islamabad and sentenced to undergo ten (10) years rigorous imprisonment with fine of Rs.125,000/- (One hundred and twenty five thousand rupees) and in default whereof to undergo further three (03) months simple imprisonment.

1. The facts of the case, as per the FIR are that on 05-07-2023 the Complainant [Tanveer Hussain Kayani S.I, P.S. Khanna, Islamabad] along with other officials was on patrolling duty at Lehtrar Road near Sanam Square in a private vehicle when they received spy information that a person with huge quantity of narcotics was standing waiting for customer who could be apprehended successfully if raid is conducted in a timely manner. The Complainant along with the other police officials, acting on spy information, reached Burma Town Street near Chappar Hotel at about 06:50 p.m., where a suspicious person after seeing the police party tried to escape but was apprehended with the help of accompanying officials. On interrogation, he disclosed his name and address as Haneef Ahmed son of Rasheed Ahmed, Caste Rajpot Bhatti, resident of Chak No. 28R Mirzapur, Tehsil Mian Channu, District Khanewal. Upon his personal search, as per procedure, Heroin Powder of light brown color wrapped in a blue colored shopper bag held by the Appellant in his left hand was recovered. On weighing with electric scale, the Heroin Powder was found to be 1025 grams. Out of the recovered Heroin Powder 1 gram was separated for chemical analysis. The Complainant prepared two parcels i.e. one sample parcel and other of remaining narcotics with seal of "MT" and took the same in possession vide the Recovery Memo.

2. After completion of investigation, challan was submitted against the Appellant. The charge was framed on 12-10-2023. The Appellant pleaded "not guilty" and claimed trial. The prosecution examined five witnesses and exhibited certain documents and items before closing their evidence. The statement of the Appellant was recorded under Section 342, Cr.P.C. in which he denied all the allegations levelled against him.

3. The learned counsel for the Appellant pointed out that while the FIR as well as the memo of recovery described the Heroin Powder as "light brown" the Forensic Report describes it as "off-white" powder. Furthermore, she submitted that admittedly the samples were sent for forensic after a delay of five days as evident from the evidence of PW-4, whereas Rule 4(2) of CNS (Government Analysts) Rules, 2001 provides that Forensic must be conducted within 72 hours. She relied upon Ahmed Ali and another v. The State, 2023 SCMR 781 to submit that where transmission is not made within 72 hours the prosecution fails to establish safe transmission. She submitted that even otherwise safe transmission is not established, as Moharrar Malkhana/PW-4 stated in his cross-examination that he handed over the sample parcel to Tanveer Hussain Kayani S.I. for onward transmission and submission in NFSA whereas PW-05/I.O stated in his examination in chief that he collected the sample parcel from Moharrar Malkhana and handed it over to Tanveer Hussain Kayani S.I. She also pointed out that PW-2 stated in his examination in chief that the Moharrar Malkhana handed over the parcel to him which bore stamp/seal of "MT" for transmission to NFSA, whereas the seal should be of "TH". Last but not least, she submitted that the blue coloured shopper bag from which the Heroin Powder was allegedly recovered was not exhibited separately, which according to the learned counsel for the Appellant is grounds for acquittal. She also relied upon Asif Ali and another v. The State through Prosecutor General Punjab, 2024 SCMR 1408.

4. On the other hand, the learned Special Prosecutor CNSA submitted that in the cross-examination of PW-5 he has explained that the sample parcel was submitted to NFSA on the 5th day of the occurrence and voluntarily stated that there were two days official holidays of Saturday and Sunday i.e. 8th and 9th July, 2023 in between, therefore, there was no delay according to him and even otherwise such delay is inconsequential as Rule 4(2) of CNS (Gov. Analysts) Rules, 2001 is merely directory and not mandatory.

5. In rebuttal, the learned counsel for Appellant submitted that the alleged occurrence took place on 5-7-2023 which was Tuesday and the official holidays of Saturday and Sunday were beyond 72 hours period.

6. We have heard the learned counsel for Appellant as well as the learned Special Prosecutor, CNSA, and have also perused the record.

Ocular evidence

1. PW-1 [Muhammad Irshad]; PW-2 Tanveer Hussain Kiyani/Complainant]; and PW-3 [Abdul Basit] testified that on 05-07-2023 the police party present at Lehtrar Road near Sanam Square for the purpose of patrolling received spy information about a person in possession of huge quantity of narcotics waiting for customers and that they apprehended the Appellant from Burma Town Street near Chappar Hotel at around 6:50 p.m. while acting on such spy information and recovered 1025 grams of heroin from a blue coloured shopper bag held by the Appellant in his left hand. PW-2 [Tanveer Hussain Kiyani/Complainant]; PW-4 Moharrar Malkhana [Muhammad Saeed]; and PW-5 [Zahid Hussain/IO] also testified regarding safe custody and safe transmission of the recovered narcotics and sample to the Malkhana and of the sample parcel from the Malkhana to the National Forensic Science Agency ("NFSA"). The prosecution witnesses fully corroborated each other.

Alleged discrepancy in ocular evidence

1. There is no material discrepancy between the evidence of the PW-3, PW-4 and PW-5 as alleged by the learned counsel for the Appellant. The Moharrar Malkhana/PW-4 stated in his cross-examination that he handed over the sample parcel to Tanveer Hussain Kayani S.I./PW-2 for onward transmission to NFSA on the direction of I.O. Zahid Hussain Shah S.I./PW-5. Similarly, Tanveer Hussain Kayani S.I/PW-2 also stated that the Moharrar Malkhana/PW-4 handed over the sample parcel to him for onward transmission to NFSA on the direction of I.O. Zahid Hussain Shah S.I./PW-5. I.O. Zahid Hussain Shah S.I./PW-5 stated that he collected the sample parcel from the Moharrar Malkhana/PW-4 and handed it over to Tanveer Hussain Kayani S.I./PW-2. Minor variation in witness testimony, which is natural, does not make recovery doubtful or vitiate the trial1.

2. Similarly, the objection regarding the seal is immaterial given that PW-3 admitted that he stamped the parcels with the seal of "MT" and PW-4 testified that he received parcels bearing the stamp of "MT" and PW-5 also confirms receipt of case property sealed with stamp "MT" notwithstanding that "MT" are not PW-3's initials.

3. All PWs were subjected to cross-examination but they remained consistent in all material aspects like date, time, place, manner and quantity of recovery of narcotics from the Appellant2 and nothing came to light to suggest that the Appellant was falsely implicated in the case.

4. Police officials are as good as private witnesses as the provision of Section 103, Cr.P.C. is not applicable to cases under CNSA, 1997 by virtue of Section 25 thereof and their testimony cannot be discarded merely for the reason that they are police officials unless accused persons prove their mala fide or ill-will toward the accused3. The Appellant in the instant case has not even alleged any enmity of the police officials against him let alone prove it. The reason for the registration of the case and deposition of the PWs against the Appellant given by him in his statement under Section 342, Cr.P.C. is to show their efficiency to the high ups, however, the Appellant failed to show any pressure on the police or any other cause to show that they were under any compulsion to show such efficiency that too by false implication against someone with whom they have no enmity. In similar circumstances the Lahore High Court in Muhammad Tanveer v. The State, 2008 MLD 602 repelled such argument by observing that it was not shown as to why the police would make fake recovery just to show efficiency by planting a huge quantity of 1050 grams of heroin, the value of which runs into lacs of rupees when the police could show it by planting lesser quantity of heroin or some other narcotic substance of cheaper value.

Forensic Report

1. The recovered substance was produced as Ex. P1 and the forensic report dated 15-8-2023 produced as Ex-PE confirms that the substance was indeed heroin powder4.

Variation in color of recovered substance as per FIR and Forensic Report

1. We do not consider the alleged variation between the FIR and the Forensic Report in respect of the colour of the recovered substance to be of any consequence. The FIR has been registered in Urdu which describes the recovered substance as . The Recovery Memo has also been recorded in Urdu which too describes the recovered substance as . The Forensic Report which is in English describes the substance as "off-white" in color. The learned counsel for the Appellant was asked to translate off-white in Urdu but she could not come up with an exact equivalent. On the other hand, the color "off-white" is defined in the Concise Oxford English Dictionary, Eleventh Edition as a white color with a grey or yellowish tinge. In our opinion, the aforementioned Urdu word used in the FIR to describe the colour of the recovered substance can, for lack of a better alternative in the Urdu language, serve to loosely describe the colour "off-white" as well. Therefore, this cannot be concluded as a material contradiction especially considering that safe transmission is otherwise established and no question regarding this aspect was put to the PWs in cross-examination.

Delay in transmitting recovered substance for forensic analysis

1. As far as the requirement under Rule 4(2) of CNS (Government Analysts) Rules, 2001 is concerned the Superior Courts have generally considered that sending a narcotic substance for forensic beyond a period of 72 hours does not vitiate the trial as the direction contained in the said rule is directory and not mandatory in nature5. In fact the Supreme Court has held in Zain Ali v. The State, 2023 SCMR 1669 that the CNS Rules, 2001 do not place any bar on the Investigating Officer to send the samples within a specified period of time and that the rules are stricto sensu directory and not mandatory as it does not spell out as to whether in case of lapse it would automatically become instrumental in discarding the whole prosecution case and finally that the rules cannot control the substantive provisions of the parent act and cannot in any manner frustrate the salient features of the prosecution case.

2. Even the case relied upon by the Appellant i.e. Ahmed Ali (Supra) does not hold otherwise. Though it emphasizes that the analyses of the narcotics substance should not be delayed in reference to the fact that Courts refuse to extend remand beyond 15 days in the absence of a chemical report however acquittal in such case has not been granted on account of delay in sending the narcotics substances for chemical testing.

3. In the instant case, the alleged recovery was admittedly made at 6:50 pm on 5-07-2023, which was a Wednesday (not Tuesday as argued by the learned counsel for the Appellant). Thus 72 hours expired at 6:50 pm on 8-07-2023 which was a public holiday on account of being Saturday. The samples were sent for forensic on the following Monday which was the first working day after the two public holidays and as such there was no delay.

Blue-colored shopper bag

1. The learned counsel for the Appellant relied upon Ahmad Ali (Supra) to argue that a reasonable doubt is created in the case due to the prosecution's failure to separately exhibit the blue colored shopper bag from which the alleged narcotic was recovered. We, however, do not agree with the learned counsel for the Appellant that an inference can be drawn from the judgment rendered by the Supreme Court in Ahmad Ali (Supra) that failure to separately exhibit the blue colored shopper bag from which the substance in question was recovered creates reasonable doubt in the instant case.

2. The point at issue in Ahmad Ali (Supra) was the effect of the prosecution's failure to produce case property i.e. (a) the recovered charas and (b) the vehicle from the secret cavities of which the narcotic was recovered. In light thereof the Supreme Court considered why and under which provisions of law the case property is liable to be produced at trial.

3. To this end the Supreme Court examined Rule 22.16 of the Police Rules, 1934 which deals with seizure of case property by the police and Rule 22.18 which discusses custody of property and various other rules which provide a mechanism for safe custody and safe transmission of case property to the concerned laboratory and then to the trial court. The judgment also adverted to Section 516-A, Cr.P.C. which deals with orders pending trial in certain cases for custody and disposal of property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence to highlight that samples of property which are found fit for safe custody and production before the Court are to be produced before the trial court and shall be deemed to be the whole of the property if remaining portion is destroyed under a certificate to be issued by the court that the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance. More importantly, for purposes of our discussion, the Supreme Court adverted to the Lahore High Court Rules and Orders (Civil and Criminal) ("High Court Rules and Orders") and particularly Part-B of Chapter 24 of Volume 3 which deals with the trial of the Sessions cases to hold that clothes, weapons, money, ornaments, food and every other article that forms part of circumstantial evidence has to be produced in court and their connection with the case and identity should be proved by witnesses.

4. Based on, inter alia, the aforementioned provisions of law the Supreme Court held that when the best evidence i.e. the case property/narcotics, vehicles, etc. is withheld by the prosecution without plausible explanation an adverse inference or assumption can be drawn against the prosecution under Article 129-G of the Qanun-e-Shahadat Order, 1984 that no such material/narcotics is in existence. Therefore it was held that where the narcotics and the vehicle which form the case property are not produced in evidence a reasonable doubt is introduced the benefit of which must go to the accused.

5. There is no gainsaying that where the accused is alleged to be in possession of a narcotic drug or psychotropic or controlled substance the commission of such offence cannot be proved without producing the alleged substance in Court as recovery in narcotic cases is not merely a corroboratory piece of evidence rather itself constitutes the charge and entails punishment6.

6. Similarly, Courts have consistently held that non-production of the vehicle from which the narcotics are allegedly recovered is fatal for the prosecution case7. The Supreme Court in Ahmad Ali (Supra) identified Rule 14-F contained in Part B of Chapter 24 of Volume-3 of the High Court Rules and Orders as the provision of law under which the case property such as the vehicle from which the narcotics are recovered is liable to be produced at trial.

7. Relying upon Ahmad Ali (Supra) another Division Bench of this Court comprising one of us (Mohsin Akhtar Kayani J.) has already held in an unreported judgment dated 3-4-2024 passed in Awais Khan v. The State, Criminal Appeal No. 345 of 2023 that the principle behind producing the vehicle from which narcotics are recovered is equally applicable where narcotics were carried by the accused persons in a shoulder or shopping bag.

8. Therefore, let us consider Rule 14-F which is reproduced herein below:

"14F Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses."

Rule F ibid can be divided into the following three components:

(a) Clothes, weapons, money, ornaments, food and every article which forms a part of circumstantial evidence should be produced in court, (b) The connection of such article(s) with the case and

(c) Their identity should be proved by witnesses. [Emphasis added].

Circumstantial evidence

1. 'Circumstantial evidence' as described in Syed Khalid Mehmood v. The State, 1994 PCr.LJ 757 is evidence from which disputed facts may be inferred as a natural or probable conclusion. It was explained by Robert L. Donigan, Edward C. Fisher, Robert H. Reeder and Richard N. Willams in The Evidence Handbook that circumstantial evidence is proof of facts from which the existence of other facts may logically be inferred. It was further explained that the essence of circumstantial evidence is a logical inference from facts or circumstances established by direct8 or real9 evidence, or both, from which the main fact in issue may be deduced through the exercise of reason and the common experiences of mankind10. In Bichitrananda Nath v. State of Orissa, 2022 Latest Case law 6213 Ori, the High Court of Orissa observed that the term 'circumstantial evidence' is defined by Richard Glover and Peter Murphy in Murphy on Evidence (Thirteen Edition) as evidence from which the desired conclusion may be drawn which requires the tribunal of fact not only to accept the evidence presented but then to draw an inference from it. The judgment further observed that term 'circumstantial evidence' in India was used by Sir James Stephen for the first time stating that these facts depend on other facts and exists if it is proved that the other fact existed. This means that the inference is drawn according to the reasonable prudent man based upon pre-existing fact that has already been proved.

2. The Supreme Court of India in Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500 defined circumstantial evidence to mean a combination of facts creating a network from which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. As expressed by the Tennessee Court of Criminal Appeals in the case of Hick v. State, 490 S.W.2d 174, 178 in circumstantial evidence cases single facts, of themselves, may each account for little weight but when all the facts and circumstances are put together they may unerringly point the finger of guilt to the defendant beyond a reasonable doubt. Similarly, Bichitrananda Nath (Supra) further explained that circumstantial evidence does not establish complete guilt until every evidence is negating the innocence of the accused. The whole chain of fact and circumstance of the case should be so complete that from the same the existence of principal fact can legitimately by inferred or presumed and no suspicion or conjecture comes in the minds of the Court regarding the guilt of the accused when he can be convicted on the basis of circumstantial evidence. In a case of circumstantial evidence all the pieces comprising the circumstantial evidence must constitute a chain without any missing link with the combined effect that the guilt is established beyond a shadow of doubt11.

3. One of the links to join in the chain of circumstantial evidence could be incriminating articles that are used for or in the commission of the offence12 including the receptacle used to contain the substance in a narcotics case. Thus a vehicle from which narcotics are recovered may form a piece of circumstantial evidence from which guilt of the accused may be inferred.

Connection of the article forming part of the circumstantial evidence with the case.

1. The connection of the article (example, vehicle or receptacle) being produced as part of circumstantial evidence must be proved with the accused by witnesses13. John Henry Wigmore in Anglo-American System of Evidence in Trials at Common Law (Third Edition) Volume 1 quotes Peterson, J in Smith and Ogden's Trial, Lloyd.s Rep. 82 that evidence which is offered to the court must be pertinent to the issue or in some proper manner connected with it for it would be an endless task and create inextricable confusion if parties were to give in evidence whatever wild imagination might suggest and the law would become labyrinth and a bottom less pit.

2. The evidence sought to be produced must have some probative force to connect the accused with the commission of the offence14. Probative force is defined by Justice Holmes in Words and Phrases Volume 34 (Permanent Addition) as the tendency to make existence of any fact of consequence more or less probable than it would be without the evidence. For example, clothes worn by the accused during the commission of the offence do not necessarily have probative value in every case. But in Muhammad Waseem v. The State, Criminal Appeal No. 111 of 2024 where the accused was allegedly carrying narcotics in his shalwar pocket, another Division Bench of this Court comprising one of us (Mohsin Akhtar Kayani J.) held by way of an unreported judgment dated 22-7-2024 that the failure to produce the secret pocket of the shalwar as well as the shopper-wrapping was an infirmity in the prosecution case by holding that the failure to exhibit any type of container from which the narcotics were recovered nothing but a material omission.

Identity of the article forming part of the circumstantial evidence

1. Last but not least, the identity of the article sought to be produced as forming part of circumstantial evidence must be proved by witnesses. In Naveed Asghar v. The State, PLD 2021 SC 600 the recovery of the motorcycle was found completely deficient as an incriminatory piece of circumstantial evidence to connect the accused with the commission of the offence as no specification thereof i.e. its make, colour, power, or registration number was mentioned in the FIR nor was any chemical examination conducted to ascertain whether the blood stain on the seat cover was human blood and whether it matched with the blood of any of the deceased or accused person.

Failure to produce receptacle/packaging

1. Now that we understand why and under which provision of law a vehicle, and by analogy a receptacle or packaging, from which narcotics are recovered is to be produced let us consider whether the failure to produce the shopper bag colloquially referred to as 'shopper' from which the substance was allegedly recovered creates a reasonable doubt in respect of the prosecution case. It must be borne in mind that circumstantial evidence only lends credence to the other pieces of evidence15. Such evidence is always taken in aid of direct evidence16. The recovery of incriminating articles provides corroboration to the ocular testimony17 therefore both have to be considered simultaneously18. The requirement of corroboration depends on the facts and circumstances and the nature of each case; if the evidence does not suffer from any major or significant contradiction, corroboration is not insisted upon19.

2. In the State of U.P. v. Krishana Gopal, AIR 1988 SC 2154, the Supreme Court of India explained that eye-witness account requires careful, independent assessment and evaluation for its credibility. The judgment cautioned that the ocular account should not be adversely pre-judged by making any other evidence the sole test for the credibility of eye-witness account. Rather such evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit worthy; consistency with the undisputed facts; the performance of the witnesses in the witness box; their power of observation, etc. It is then that probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

3. The Baluchistan High Court in Gul Mir v. State, 2021 YLR 2041 observed that it is needless to mention that an ocular account not supported by independent evidence shall not be relied upon on the basis of recovery of incriminating articles and therefore the effect of absence of incriminating article can also be treated vice versa and in case the same was not recovered the same shall not outweigh the ocular account.

4. Indeed, this Court in Muhammad Waseem (Supra) held that not exhibiting appellant's shalwar from which the narcotics were allegedly recovered nor the shopper-wrapping over the drugs when viewed along with the other infirmities in the prosecution case can fall substantially short of the standard of proof requisite in criminal trials of offences with severe sentences. Similarly, the Supreme Court made note of various discrepancies and infirmities in the prosecution evidence in Amjad Ali v. The State, 2012 SCMR 577 including that admittedly the case property i.e. the stepney of the car was never produced during trial to verify as to whether it could contain 20 kilograms of charas. The aforementioned elements of doubt cumulatively led the Supreme Court to hold that the prosecution failed to prove its case beyond reasonable doubt to sustain conviction.

5. In short, the effect of the failure to produce in evidence the receptacle or the packaging from which the narcotics are recovered may vary from case to case.

Separate Exhibit

1. Coming back to the case at hand, it must be borne in mind that the Appellant has not denied that the blue coloured shopper bag was produced in evidence. The objection raised on behalf of the Appellant is that the blue colored shopper bag was not exhibited separately. Ahmad Ali (Supra) does not advance the case of the Appellant as it involved a vehicle whereas the instant case involves the packing material without which the alleged substance which was in powder form could not have been exhibited separately unless the evidence shows that it was taken out of its original container and transferred to another container.

2. Indeed the International Association of Chiefs of Police in its Training Key on Handling and Processing Narcotics Evidence available at https://www.theiacp.org/sites recommends that the evidence should be left in its original container and marked and sealed for transportation to the police property and evidence room. In the event that the evidence must be removed from its original container the container should be included with the evidence and if that is not possible it should be photographed and the photograph included in the evidence.

3. Examination of the record shows that the Memo of Recovery produced as Ex-PA categorically notes that during the personal search of the Appellant as per procedure heroin powder wrapped in a blue coloured shopper bag held by the Appellant in his left hand was recovered out of which 1 gram heroin was taken for the purpose of chemical analysis. Tanveer Hussain Kayani S.I/PW-2 testified that 1 gram heroin was separated by him from the heroin recovered from the blue coloured shopper bag which the Appellant was holding in his left hand and two sealed parcels were prepared (one sample and another of remaining narcotic/heroin Ex-P1). The foregoing facts were confirmed by PWs Nos. 1 and 3 in their respective examination-in-chief. PW 1 and 2 submitted on cross-examination that the sample was separated from the recovered narcotics with spoon which was in the investigation kit. PW-4 [Muhammad Saeed] confirmed that he received two sealed parcels which were placed in safe custody of the Malkhana and that they remained intact during his custody. No question was raised in cross-examination as to whether the recovered substance was taken out of its original container or that the blue coloured shopper bag was not produced in evidence as part of Ex.P1.

2025 P Cr. L J 41

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon, J

Barkat Ali and 2 others---Appellants

Versus

The State and another---Respondents

Criminal Appeal No. S-04 of 2024, decided on 27th May, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Illegal dispossession of property---Appreciation of evidence---Civil Court to first decide issue of partition/demarcation of disputed land---Allegation against the accused persons was that they dispossessed the complainant party forcibly from their land---In the present case both the parties were real brothers and were at loggerheads and there appeared to be a civil/revenue/inheritance dispute over some of the portion of the subject land---In such a scenario, the Trial Court ought to have referred the matter to the civil/revenue Court first to decide the issue of partition/demarcation of the subject land rather than convicting the brothers of the complainant under Illegal Dispossession Act, 2005, as there appeared no valid ground to claim that the accused were land grabbers/Qaza Mafia and the Civil Court could easily decide the issue of possession of the land---Thus, appeal against conviction was allowed leaving the parties to resort to the Court of plenary jurisdiction for possession, which shall regulate the affairs of the subject land till final decision.

Shabbir Ali Bozdar for Appellants.

Khan Muhammad Sangi for the Complainant.

Gulzar Ahmed Malano, Assistant P.G for the State.

Date of hearing: 13th May, 2024.

Judgment

Adnan-ul-Karim Memon, J.---The applicants Barkat Ali, Shoukat Ali, and Sikandar Ali, and private respondent Liaquat Ali are real brothers who have a dispute over inherited property i.e. Survey No. 2/1( 1-2) and others, whereas in survey No. 2/1, 2/3 and others respondent Liaquat Ali claims to be the owner of four (4) acres purchased by him independently and there is no right of inheritance in that land. However, he succeeded in filing a Criminal I.D Complaint No. 92 of 2022 before the learned Sessions Judge Ghotki against applicants/brothers under sections 3 and 5 of the Illegal Dispossession Act, 2005, who were tried and convicted by the learned Additional Sessions Judge (MCTC), Ubauro District Ghotki, to suffer R.I for 05 years and with a fine of Rs. 50,000/-(Fifty thousand). In default to pay the fine, the applicants suffer S.I. for 03 months more. A sum of Rs. 1,00,000/- (One lac) was also imposed upon the applicants as compensation payable to the complainant under Section 544-A Cr.P.C. It was further ordered that the possession of the illegally occupied land of the complainant be restored to him.

1. The applicants being aggrieved by and dissatisfied with the above judgment have filed the instant Criminal Appeal, inter alia on the ground that the respondent brother was not dispossessed from Agriculture Land bearing Survey No. 2/1(01-02) acres, and Survey No. 437/1 (01-28) acres situated Deh Jhangal Malik, Taluka Ubauro District Ghotki; that the trial Court failed to appreciate the evidence that the respondent brother admitted in his evidence that they collectively had purchased the subject land from their sister Mst. Janul; also admitted that he was not aware whether his name was officially partitioned with his brothers; he also admitted that in Survey No. 2/1, the applicants were/are co-sharers; he also admitted that he obtained the land on lease from Survey No. 2 from applicant Sikandar; that he also submitted that in his complaint he mentioned the name of Mst. Soomari and Mst. Razia as co-accused; that Mukhtiarkar (Revenue) Taluka Ubauro, erroneously disclosed in his report that the applicants had possessed the land of the respondent illegally and owner of four (04) acres is Liaquat Ali, though he disclosed that as per V-F- No. VII, Entry No. 439 dated 16.06.2006, Survey No. 2/1 (01-02) and others foti khata badal of their father Sadiq mutated into his legal heirs accused Barkat Ali and others, the share of accused Barkat Ali is (04 acres).

2. Precisely the facts disclosed in the complaint filed by complainant Liaquat Ali are that he is the owner of agricultural land bearing survey No.2/1 admeasuring area (1-2) acres and survey No. 437/1 admeasuring area (1-28) acres situated at Deh Jhangal Malik Taluka Ubauro. It is further stated that the complainant purchased an area of 1-28 acres in survey No. 437/1 from Piyaro son of Muhammad Usman Bhutto which is situated in Deh Jhangal Malik and is also co-sharer of (1-02) acres from survey No. 2/1 by way of inheritance of his father after his death. It is further stated that the appellants were not ready to deliver the inheritance share of the complainant were annoyed with him and were issuing him threats of forcibly dispossessing and grabbing his land. On 17.03.2022 at 1600 hours complainant along with his family members was present at the aforementioned land for harvesting the wheat crop where all the accused persons along with two unknown accused persons duly armed with lethal weapons came and started dispossessing the complainant party by pointing their weapons. On the refusal of the complainant party, the accused persons caused club blows to the complainant party. The complainant party being seriously injured rushed to Taluka Hospital Daharki for treatment from where they were referred to GMMC Sukkur for further treatment after discharge from the hospital and requested the accused persons to vacate his land which they vacated the land temporarily and told him that they would not permit him to cultivate the land with any crop. It is further stated that on 05.05.2022 at 10:00 am when the complainant along with P.Ws Rahim Bux and Zahid Ali was present on his above said lands and were preparing to cultivate cotton crop in the land, in the meanwhile, the accused Barkat Ali armed with Kalashnikov, Shoukat Ali armed with a repeater, Sikandar Ali armed with Kalashnikov and three unidentified accused persons armed with pistols came over there along with two tractors and forcibly and illegally disposed the complainant from the disputed land and occupied the same. Thereafter complainant repeatedly requested the accused persons to vacate his land but they refused. The complainant approached the police but to no avail; hence complainant filed the complaint of illegal dispossession against the accused which after due process was brought on regular file and the case was registered against the accused for having committed the offence punishable under section 3(2) of the Illegal Dispossession Act-2005. The Bailable warrants were issued against the accused to appear before the court and face the trial. In the wake of warrants issued against the accused, they appeared and submitted their sureties. The copies of necessary documents were supplied to the accused on receipt at Exh.1.The formal charge was framed against the accused at Ex.2, to which they pleaded not guilty and claimed their trial vide pleas at Ex.2/A to 2/C respectively.

3. At the trial prosecution examined complainant Liaquat Ali at Exh.3 who produced the certified true copies of entry No. 4 dated 06.01.2006 and entry No. 452 dated 12.12.2006 at Exh.3/A and 3/B and complaint at Exh.3/C respectively. PW Zahid Ali was examined at Exh.4. PW.3 Rahim Bux was examined at Exh. 5. PW.4 ASI Muhammad Haneef who conducted the inquiry was examined at Exh.6. He produced the report at Exh.6/A and statements of parties at Exh. 6/B. PW.5 Tapedar Shahmeer was examined at Exh.

4. He has produced an authority letter at Exh.7/A and the report of Mukhtiarkar at Exh.7/B respectively.

5. The statements of appellants under section 342 Cr.P.C. are recorded at Ex.9 to 11 respectively. In their statements, the accused have denied the prosecution allegations and have stated that they are innocent and have been falsely implicated in the case. They have taken the plea that actually in the year 2009 complainant and accused Shoukat Ali obtained the loan from ZTB Ltd. Ubauro, and from the said loan amount they had purchased the land jointly from Piyaro son of Muhammad Usman Bhutto. They have further stated that they are in lawful possession of the suit land and have not illegally occupied the same. In support of their version accused have produced the copy of FIR bearing crime No. 45/2022 at Exh.9/A and receipts of taking the loan from Exh.11/A to 11/E respectively. The accused, however, have neither expressed to be examined on oath under section 340 (2) Cr.P.C., nor named any person to be examined as their defense witness.

6. Learned counsel for the applicants has argued that there is no evidence at all to show that the accused have forcibly or illegally occupied the land of the respondent/complainant perforce. He has further argued that the ingredients of the Illegal Dispossession Act-2005 are not attractive as the applicants have not illegally occupied the subject land, nor dispossessed the complainant without due course of law. He has further argued that the applicants are co-sharers, co-purchasers of the subject land and are also in possession of the same by way of private partition that took place between the parties. The applicants have committed no offense. The applicants are neither land grabbers nor possess such antecedents which is the basic requirement for the case of illegal dispossession. He prayed for setting aside the conviction awarded by the learned trial Court.

7. Learned counsel for the respondent/complainant has argued that the prosecution has fully established that the accused are in illegal occupation of the land belonging to the complainant. He has further argued that the SHO and Mukhtiarkar have also reported that the accused have illegally occupied the land of the complainant. He has further argued that even during the lengthy cross-examination the learned counsel for the appellants has not denied that the appellants do not own the land belonging to the complainant. He has also argued that no documentary proof in support of the plea of joint purchasing the disputed land has been brought on record by the accused which fully proves that the accused are admittedly in possession of the disputed land of the complainant and have committed the offense punishable under section 3(2) of the Illegal Dispossession Act 2005, therefore, the accused may be convicted according to law, complainant be provided compensation as well as he may be restored possession of the disputed land occupied by the accused persons perforce. As per learned counsel complainant Liaquat Ali in his deposition has deposed that he owns agricultural land bearing survey number 2/1 (1-02) acres, survey No. 437/1 (1-28) acres, situated in Deh Jhangal Malik Taluka Ubauro. He has further deposed that he had purchased the above-mentioned land in the year 2010 from one Piyaro son of Muhammad Usman Bhutto. He has further deposed that survey No. 2/1 is his ancestral property. On 17.03.2022 at about 0400 hours he was cutting the wheat crop along with his witnesses Zahid Ali, Rahim Bux and his wife, where at that time accused Barkat, Sikandar, Shoukat armed with lathies and two unknown accused persons duly armed with weapons came over there. He has further deposed that the accused persons caused him and his wife lathi blows and thereafter they went to police station Reti, obtained the letter for treatment, and then went to Taluka Hospital Daharki for treatment. Due to serious injuries, they were referred by the medical officer to GMMC Sukkur. He has further deposed that they remained under treatment at GMMC Sukkur for 5 to 6 days and then returned to PS Reti, but the police did not register his FIR. On 05.05.2022 at about 10:00 am he, his son Zahid Ali, and Rahim Bux were working on their land, where accused Barkat armed with Kalashnikov, Shoukat armed with a repeater, Sikandar armed with Kalashnikov and three unknown accused who were armed with pistols came over there along with two tractors and started plowing the land on the force of weapons and occupied the same. They gave the names of Almighty Allah and Rasool (SAW) to the accused, but they refused. He has further deposed that on 15.08.2022 he made such application to the SSP, but the police did nothing and then he filed the complaint before the Court which was also dismissed. He has further deposed that the applicants have illegally occupied his land and have taken away three crops from the land and are in illegal possession, therefore, he may be restored possession of the land and so also awarded compensation for the crops. He prayed for dismissal of the instant Criminal Appeal.

8. We have heard the learned counsel for the parties and perused the record with their assistance.

9. At the outset I intend to see whether the case of the parties falls within the ambit of Sections 3 and 4 of the said statute or otherwise, which defines the offense thereunder. Section 4 stipulates that any "contravention of Section 3 shall be triable by the Court of Session on a complaint. It also provides that the offense under the Act shall be non-cognizable. Section 5 empowers the Court to direct the police to make an investigation. It is clear from Section 3 ibid that to constitute an offense thereunder the complaint must disclose the existence of both, an unlawful act (actus-rea) and criminal intent (mens-rea). Besides the Illegal Dispossession Act, 2005 applied to the dispossession of immovable property only by property grabbers/Qabza Group/land mafia.

10. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim.

11. In the case of an individual, it must be the manner of execution of his design that may expose him as a property grabber. Additionally, the Illegal Dispossession Act, 2005 does not apply to run-of-the-mill cases of alleged dispossession from immoveable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. cases of disputes over possession of immovable properties between coowners or co-sharers, between landlords and tenants, between persons claiming possession based on inheritance, between persons vying for possession based on competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property. Further a complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of therelevant property is being regulated by a civil or revenue Court.

12. There is no cavil to the proposition that if the offense confines to the provisions of the Illegal Dispossession Act, 2005 then the land grabbers/Qabza Group/land mafia cannot escape punishment as no one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property, however, in the present case both the parties are real brothers and are at loggerhead and claim and counterclaims and there appears to be a civil/revenue/inheritance dispute over some of the portion of the subject land, and in such a scenario, the learned trial Court ought to have referred the matter to the civil/ revenue Court firstly to decide the issue of partition/demarcation of the subject land rather than convicting the brothers of the complainant under Illegal Dispossession Act, 2005 as there appears no valid ground to claim that the applicants were land grabbers/Qabza Mafia and the civil Court could easily decide the issue of possession of the land. However, in principle, the Court empowered to take cognizance of an offense under the Act, is required to filter out those complaints which do not disclose the requisite criminal intent. Courts that have been authorized to try cases under the Act, 2005 thus have a responsibility to see that the persons named in the complaint have a case to answer before they are summoned to face trial. In the present case, both the parties are one family, however, due to the application of the Illegal Disposition Act, 2005, the applicants were tried and convicted.

2025 P Cr. L J 98

[Sindh]

Before Muhammad Saleem Jessar, J

Qadeer Hussain Shah---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1423 of 2024, decided on 12th September, 2024.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque---Pre-arrest bail, confirmation of---Further inquiry---Admittedly the applicant was all along on bail granted to him by First Appellate Court on 23.12.2020; however, he remained fugitive for about 13 months and again surrendered before the Court below by filing anticipatory bail application---Since the applicant was granted bail by first Appellate Court on merits and later he after remaining an absconder for 13 months surrendered voluntarily before the Court below as well as High Court, thereby had put himself completely upon the mercy of Court---Such conduct on the part of applicant showed that he had no wrong intention to abscond away---After rejoining the trial, applicant had been appearing and facing it without negligence, resultantly, the trial had been concluded and it was at the verge of conclusion viz. recording statement of the accused in terms of S.342 Cr.P.C.---No complaint with regard to misuse of the concession of bail extended to applicant had been brought on record by the prosecution or the complainant through which it could be deduced that applicant was not entitled for extraordinary relief---Mere absconsion was no ground to intercept the bail to an accused if otherwise accused had got a good case on merits---As far as merits of the case were concerned, applicant was granted post arrest bail by the first Appellate Court on merits and later due to his absconsion it was recalled---In case, applicant was put behind the bars, tomorrow again he would be released on bail, therefore, no technical or legal purpose would be served by putting him in jail---In the present case, applicant was all along on bail granted to him by the first Appellate Court; besides, he was not arrested or forced to surrender but he had surrendered voluntarily by putting himself completely upon mercy of the Court; hence, he deserved extraordinary relief of bail---Every accused would be presumed to be blue eyed of the law until and unless he might be found guilty of the charge and law could not be stretched upon in favour of the prosecution particularly at bail stage---Since, the applicant was granted bail on merits and later it was recalled due to his absconsion; hence, looking at his conduct, his case required further enquiry---Bail application was allowed, in circumstances.

Tufail Ahmed v. The State 2015 PCr.LJ 51; Abdul Rasheed v. The State and another 2023 SCMR 1948; Muhammad Aslam v. The State and others 2016 SCMR 1520; Noman Khaliq v. The State and another 2023 SCMR 2122 and Ikram-Ul-Haq v. Raja Naveed Sabir and others 2012 SCMR 1273 ref.

Mitho Pitafi v. The State 2009 SCMR 299; Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380; Hassan Ali Raja v. The State and another 2020 PCr.LJ 931; Abdul Qadir v. The State 2004 PCr.LJ 285 and Muhammad Tanveer v. The State PLD 2017 SC 733 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Reasoning given in the bail order is tentative in nature and should have no effect whatsoever in any manner upon merits of the case.

Waseem Iqbal and Muhammad Nasir for Applicant along with Applicant on bail.

Nemo for Complainant.

Ms. Rubina Qadir, DPG, Sindh for the State.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, applicant Qadeer Hussain Shah son of Muhammad Hussain Shah seeks his admission to pre arrest bail in Crime No. 267/2020 registered with Police Station North Nazimabad, Karachi under section 489-F P.P.C. The case had been challaned which is now pending adjudication before the Court of Civil Judge and Judicial Magistrate-XII, Karachi-Central (trial Court) vide Criminal Case No. Nil/2022 (re-the State v. Qadeer Hussain Shah). The applicant had filed an application under Section 497 Cr.P.C before the trial Court which by means of order dated 17.12.2020 was declined and later he filed Criminal Bail Application No.2354 of 2020 before the Court of Session which subsequently was assigned to Addl. Sessions Judge-VII/MCTC-02, Karachi-Central. Learned Additional Sessions Judge, after hearing the parties, had admitted the applicant on post arrest bail by means of his order dated 23.12.2020. After getting released on bail, the applicant could not continue his appearance before the trial Court, therefore, bail granted to him by learned Addl. Sessions Judge, was recalled. Hence, as and when he learnt about pendency of instant case, he approached Court of Session through anticipatory bail application bearing No.1065 of 2024 which was declined in terms of its order dated 26.06.2024. Hence this application.

1. Perusal of record reveals that vide order dated 28.06.2024, applicant was admitted to ad-interim pre-arrest bail and today the same is fixed for confirmation or otherwise.

2. At the very outset, learned counsel for the applicant points out that applicant was all along on bail granted to him by the Additional Sessions Judge vide order dated 23.12.2020, available at page 37 of the file; however, after getting released from jail he could not appear before the trial court due to unavoidable circumstances; however, as and when he learnt that case has not been disposed of, has filed anticipatory bail application before the Court of Sessions, which subsequently, was assigned to VIIth Additional Sessions Judge/MCTC Karachi-Central, who after hearing the parties has turned down the request of applicant for extraordinary relief vide order dated 26.06.2024. He further submits that after furnishing surety before this court, the applicant has joined the trial proceedings where entire case has been proceeded and now it is fixed for recording statement of accused under section 342 Cr.P.C. He, therefore, submits that once the applicant was admitted to bail and surrendered voluntarily before the Court below as well as before this Court, his conduct shows that he had no wrong intention to abscond away but to surrender, hence prays for confirmation of ad-interim pre arrest bail. To support his submissions, learned counsel has relied upon the cases of Tufail Ahmed v. The State (2015 PCr.LJ 51), Abdul Rasheed v. The State and another (2023 SCMR 1948), Muhammad Aslam v. The State and others (2016 SCMR 1520), Noman Khaliq v. The State and another (2023 SCMR 2122) and case of Ikram-Ul-Haq v. Raja Naveed Sabir and others (2012 SCMR 1273).

3. Learned Deputy Prosecutor General, Sindh opposed the grant of this application on the ground that applicant by remaining fugitive has misused the concession, therefore, is not entitled for bail; however, she could not controvert the fact that applicant surrendered voluntarily by filing anticipatory bail before the Court of Session as well as this court; besides, he was all along on bail granted to him by the Additional Sessions Judge on merits.

4. The complainant inspite of service has chosen to remain absent.

5. Heard and perused the record. Admittedly the applicant was all along on bail granted to him by Additional Sessions Judge on 23.12.2020; however, he remained fugitive for about 13 months and again surrendered before the court below by filing anticipatory bail application. Since the applicant was granted bail by the Additional Sessions Judge on merits and later he after remaining absconder for 13 months surrendered voluntarily before the court below as well as this court, thereby has put himself completely upon the mercy of court. Such conduct on the part of applicant shows, he had no wrong intention to abscond away. After rejoining the trial, applicant has been appearing and facing it without negligence, resultantly, the trial has been concluded and at the moment, as stated at the Bar, it is at the verge of conclusion viz. recording statement of the accused in terms of Section 342 Cr.P.C. No complaint with regard to misuse of the concession extended to applicant has been brought on record by the prosecution or the complainant through which it could be deduced that applicant is not entitled for extraordinary relief.

6. It is settled principle of law that mere absconsion is no ground to intercept the bail to an accused if otherwise accused has got a good case on merits. Reliance can be placed upon the case of Mitho Pitafi v. The State (2009 SCMR 299). As far as, merits of the case are concerned, applicant was granted post arrest bail by the Addl. Sessions Judge on merits and later due to his little a bit absconsion it was recalled. In case, applicant may be put behind the bars, tomorrow again he will be released on bail, therefore, no technical or legal purpose will be served by putting him in jail. Reference can be had from the case of Muhammad Ramzan v. Zafarullah and another (1986 SCMR 1380). In instant case, applicant was all along on bail granted to him by the Addl. Sessions Judge; besides, he was not arrested or forced to surrender but he had surrendered voluntarily by putting himself completely upon mercy of the Court; hence, he deserves to be admitted to extraordinary relief. In case of Hassan Ali Raja v. The State and another (2020 PCr.LJ 931) learned Bench of Islamabad High Court, while dealing with identical issue, has held in para-11 of said order, as under;_

"11. There should be some difference between proclaimed offender, who had remained subject of raids, exercise to trace whereabouts, search by investigating agency and finally caught, arrested due to efforts by the police or either during proceedings on the direction of the Court, and one who himself voluntarily surrenders before the Court of law, put himself to the mercy of the Court, seeks protection of the Court and present himself to seek assistance of the Court/access to justice. It amounts to denial an individual to access to justice if some benefit is not extended to the latter. In response to his volunteer act as compared to the forceful arrest by the police/agency. He has placed/put confidence upon the administration of Criminal Justice System. This Court believes that one who wants to avail protection of criminal justice system, he should not be discouraged and penalized for his good deed because finally the matter is to be dealt with by the Court of competent jurisdiction on merits."

2025 P Cr. L J 117

[Sindh]

Before Muhammad Junaid Ghaffar and Muhammad Abdur Rahman, JJ

Mohammad Uzair Ahmed Maniya---Petitioner

Versus

Federation of Pakistan through Chairman/DAG FBR and 2 others---Respondents

Constitution Petition No. D-712 of 2021, decided on 22nd August, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Alternate and efficacious remedy---Cognizance by Trial Court---Petitioner / accused sought quashing of FIR registered against him, in which investigation report had been filed and Trial Court had taken cognizance---Validity---After taking cognizance of case by Trial Court, FIR registered cannot be quashed and fate of case and that of accused person challaned therein has to be determined by Trial Court itself---Only way is that if accused person deems himself to be innocent and falsely implicated, he has been provided remedy under Ss.249-A and 265-K, Cr.P.C. to seek his premature acquittal from concerned Trial Court on the ground that there is no possibility of his conviction---High Court declined to interfere in the matter on the allegation of petitioner / accused who had alternate and efficacious remedy by approaching concerned Court under S.265-K, Cr.P.C.---Constitutional petition was dismissed, in circumstances.

FIA v. Syed Hamid Ali Shah PLD 2023 SC 265; Sher Afghan Khan Niazi v. Ali S Habib 2011 SCMR 1813; Muhammad Ali v. Samina Qasim Tarar 2022 SCMR 2001; Muhammad Farooq v. Ahmed Nawaz Jagirani PLD 2016 SC 55; Muhammad Mansha v. Station House Officer PLD 2006 SC 598; Rana Shahid Ahmed Khan v. Tanveer Ahmed 2011 SCMR 1937; Muhammad Abbasi v. SHO Bhara Kaho PLD 2010 SC 969 and Director General Anti-Corruption v. Muhammad Akram Khan PLD 2013 SC 401 rel.

Aqeel Ahmed for the Petitioner.

Kashif Nazeer, Assistant Attorney General.

Syed Ahsan Ali Shah for Respondents Nos. 2 and 3.

Order

Through this Petition, the Petitioner seeks quashment of FIR No. 13 of 2020 dated 31.08.2020 on the ground that the same has been registered without lawful authority and jurisdiction. It appears that on the very first date of hearing, while entertaining this Petition, an ad-interim order has been passed whereby, the Petitioner has been granted pre-arrest bail in the following terms:-

2025 P Cr. L J 126

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Muhammad Saleem---Applicant

Versus

The STATE and 2 others---Respondents

Cr. Misc. Application No. D-16 of 2024, decided on 22nd May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 149---Penal Code (XLV of 1860), Ss. 302, 324, 506(2), 107, 114, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Police Order (22 of 2002), Art. 155(1)(c)(d)---Quashing of order---Scope---Accused/applicant was charged for offence under S.107, P.P.C, as well as under S.149, Cr.P.C, and Art. 155-C of Police Order, 2002, by not preventing commission of offence as at least four persons lost their lives during the occurrence---Validity---Record showed that Court had not referred to any material facts leading it to conclude that applicant, the SHO of Police Station, was equally involved in commission of the alleged offence---Court had not cited any provision of law that gave it authority to make some Police Official, who had nothing to do with the crime, as an accused therein, just because the offence got committed in his jurisdiction---Secondly, Court had not pointed out any justification creating even a remote hypothesis of applicant's hand in commission of the alleged offence---Reference to S.107, P.P.C, and conclusion that failure of applicant to stop the crime came within definition of illegal omission was equally misconceived and based on wrong understanding of said provision---S.107, P.P.C, or scheme under S.149, Cr.P.C, would come into play only when the Police Officer, or someone for that matter, had the knowledge of the offence about to be committed or which was being committed in his presence, which he either instigated or engaged with one or more other persons for committing that offence or made a conspiracy for doing it, or indulged in illegal omission by letting it happen without informing the relevant police or the victims with a view to prevent it---Moreover, it would not apply to Incharge Police Station in whose jurisdiction the offence had been committed and about which he only later on came to know---Nothing in the present case was available on record, or had been referred to by the Judge, that might show advance knowledge of the applicant qua commission of the offence or his presence at the spot, or his failure to stop it in order to hold him responsible for illegal omission on his part---No doubt, it was the duty of the Police Officer to maintain law and order situation within a given area, however, it would not mean that if an offence was committed within the jurisdiction of the police station, the SHO would be joined in the case as an accused to stand trial along with actual culprits---Negligence on the part of a Police Officer to take necessary measures for preventing cognizable offences is a different species, and it cannot be equated with the actual offence committed by the accused in his area---If some Police Official is found negligent in performance of his duty, he would be chargeable by a provision different than the offence which is found to have been committed due to his negligence and he would be dealt with by a different procedure---Negligence of applicant would not however make him an accused in the main offence, like the one in hand where allegedly on account of previous enmity four (04) persons had been killed---If the approach adopted in the impugned order was allowed to remain in the field, it would create upheaval in the society, demoralize the police force and would put entire justice system in jeopardy---Approach of Court in making SHO of the relevant Police Station as an accused in the main offence was therefore alien to law and based on non-understanding of relevant provisions---Hence, the impugned order being meritless was set aside---Application was accordingly allowed.

Atta Hussain Chandio for Applicant.

Syed Sardar Ali Shah Rizvi, Additional Prosecutor General.

Date of hearing: 22nd May, 2024.

Order

Muhammad Iqbal Kalhoro, J.---When final report under section 173 Cr.P.C in Crime No.284 of 2023, registered at Police Shaheed Murtaza Mirani, District Khairpur under sections 302, 324, 337-A(i), 337-F(iii), 337-F(vi), 506/2, 114, 148, 149 P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 was submitted by the IO before learned Anti-Terrorism Court, Khairpur for taking cognizance of the offences against the accused named in FIR, he before doing it issued a show-cause notice to SHO of the said police station, namely Saleem Dayo, the applicant, for having committed an offence under section 155(1) of (c and d) of Chapter XVII of Police Order, 2002 as well as third proviso of Section 107 P.P.C., punishable under section 109 P.P.C. The applicant submitted a reply, but it seems that learned Judge did not get satisfied, and by impugned order dated 18.04.2024, he has not only taken cognizance of the offences against the nominated accused but has made the applicant as an accused in the same crime for committing offences under sections 302, 324, 506/2, 114, 148, 149 P.P.C. read with Section 7 of Anti-Terrorism Act, 1997.

1. The reasons influencing mind of learned Judge to arraign applicant in the same case as an accused are that he was the SHO of the said police station where the offence, in which at least four (04) persons lost their lives, had taken place, but he did not take any preventive measures to stop it, which in view of learned Judge was an offence under the provisions of law under which the applicant was given a show-cause notice. It seems that learned Judge while dictating the impugned order has taken extra pains to discuss scheme of the said provisions of law and has concluded that by not preventing commission of the said offence in advance, the SHO was equally guilty of the offence committed by the accused in that he had abetted the same by failing to prevent the occurrence, which in his view was an illegal omission on his part as defined under section 107 P.P.C. This order has sensitized applicant to approach this Court for safety by means of this application.

2. We have heard parties and perused material available on record. Learned Additional Prosecutor General, at the very outset, has candidly conceded that the impugned order is not sustainable in law, is based on misconceived interpretation of the scheme contained in the provisions of law under which applicant was given a show-cause notice. Further, the concept promoted thereunder is alien to law, hence he does not support the same.

3. We are surprised to see that although in the opinion of the learned Judge, the applicant had committed an offence under section 107 P.P.C. by violating scheme thereunder as well as under section 149 Cr.P.C and 155(1)(c)(d) of the Police Order, 2002, which essentially enjoins a police official to take measures to prevent the commission of a cognizable offence and nuisance, but has made the applicant as an accused under sections 302, 324, 506/2, 114, 148, 149 P.P.C. and Section 7 of Anti-Terrorism Act, 1997. He has not referred to any material facts leading him to a conclusion that applicant, the SHO of Police Station, was equally involved in commission of the alleged offence. He has not cited a provision of law either giving him an authority of making some police official who had nothing to do with the crime, as an accused therein, just because the offence got committed in his jurisdiction. Secondly, he has not pointed out to a justification creating even a remote hypothesis evidencing applicant's hand in commission of the alleged offence in support of his impugned opinion.

2025 P Cr. L J 162

[Sindh]

Before Adnan-ul-Karim Memon, J

Dr. Zaib-un-Nisa---Applicant

Versus

Mudasar Shabbir and 7 others---Respondents

Criminal Appeal No. 683 of 2019, decided on 2nd July, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5, 6 & 7---Illegal dispossession of property---Family dispute---Non-applicability of Illegal Dispossession Act, 2005---Petitioner/complainant was aggrieved of order passed by Trial Court whereby, the complaint was dismissed on the premise that the family of the applicant could not be booked under Illegal Dispossession Act, 2005, as main respondent was her real mother---Validity---In the present case both the parties were at loggerhead and claimed and counter claimed---In such a situation prima facie it could not be said at present stage that whether the case fell within the definition of Illegal Dispossession Act, 2005, therefore, at present stage, the proceedings under the said Act could not be taken to its logical end until and unless it was decided whether the applicant had sold out his land to the private respondent or otherwise as both the parties relied upon certain documents which needed to be appreciated by the trial Court having plenary jurisdiction---Illegal Dispossession Act, 2005, does not apply to run-of-the-mill cases of alleged dispossession from immoveable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession based on inheritance, between persons vying for possession based on competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property---Further a complaint under the Illegal Dispossession Act, 2005, cannot be entertained where the matter of possession of relevant property is being regulated by a civil or revenue Court---In the present case, both the parties were one family, however, due to the application of the Illegal Disposition Act, 2005, on the plea that petitioner purchased the property from the original owner through a sale deed, the same assertion had been denied by the respondents and that issue could be resolved through civil proceedings---No illegality/infirmity or material irregularity was found in the impugned judgment, as such the same did not warrant any interference by the High Court---Criminal Appeal was dismissed, in circumstances.

Muhammad Shareef Buriro for Applicant.

Asif Mubarak Ali for Respondents.

Date of hearing: 2nd July, 2024.

Order

Adnan-ul-Karim Memon, J.--- Being aggrieved by and dissatisfied with the Judgment dated 06.03.2019 passed by learned IIIrd Additional Sessions Judge, Malir Karachi in Illegal Dispossession Complaint No.47 of 2016 filed by the applicant, dismissing the same, the applicant has preferred the instant Criminal Revision Application under sections 435 and 439 Cr.P.C, which was later on converted into appeal. An excerpt whereof is reproduced as under:-

"In view of discussion in forgoing point, I am of the humble opinion that the case of the complainant is replicated with discrepancies, exaggeration as well as infirmities, which could not be made as basis for the conviction of respondents/accused or make her entitled for the possession of the subject property, I, therefore, dismiss the I.D Complaint and acquit the respondents/accused namely Shama Shabbir son of Shabbir Ahmed and Mst. Parveen Akhtar wife of Shabbir Ahmed who is the real mother of the complainant under Section 265-H(I) Cr.P.C. from the charge by giving them the benefit of the doubt. They are present on bail, their bail bond stands canceled and surety discharged."

1. The facts of the case are that applicant Dr. Zaib un Nisa filed the Criminal Complaint under Section 3 of the Illegal Dispossession Act, 2005 against Mudassar Shabbir and six others on the premise that the private respondents dispossessed her from the House No. B-25, Gulshan-e-Amna Malir Halt Karachi, such complaint was filed before the learned Additional Sessions Judge Malir Karachi which was heard and decided on 06.03.2019 and the same was dismissed and acquitted the private respondents from the charge on the premise that the family of the applicant cannot be booked under Illegal Dispossession Act 2005 as Mst. Parveen Akhtar is her real mother. The applicant being aggrieved by and dissatisfied with this judgment approached this Court on 01.06.2019 by filing the Criminal Revision Application which was converted into Criminal Appeal vide order dated 04.10.2019.

2. It is inter alia contended by the applicant that the applicant has titled documents in her favor as such her complaint ought to have been decided on merit and the private respondents ought to have been convicted in the said case. Learned counsel referred to various documents attached with the memo. of appeal and submitted that the applicant's deceased father namely Shabbir Ahmed orally gifted the property to the applicant bearing House No. B-25, Gulshan-e-Amna, Malir Halt Karachi, which he purchased during his lifetime from its previous owner Malik Muhammad Maqsood, from whom the applicant's father obtained physical possession along with title documents of the said property but due to serious illness of heart disease, applicant's father could not get transfer the said house in his name; that sine 2004 the said property/house was orally gifted, the applicant along with her children and husband started to reside in the said house/property peacefully and without any hindrances and during her stay in the said house, the applicant used to pay Kunda Bill of Electricity meter 32451356 A/c No. 400025307435 and Gas connection sketch No. 0425390, before installation of Electric complaint was consuming electricity through Solar plant as well as Generator and and all utility bills including Internet were being paid to the concerned authority on regular basis. He has further added that respondents Nos. 1 to 4 forcibly entered the house and started to threaten and harass and beaten the children of the applicant and forcibly took away the precious household articles in this regard applicant informed 15 Police as well as moved the application dated 03.05.2016 to the concerned police station for legal action against the respondents Nos. 1 to 4. He has further added that on the other hand respondents with the collusion of the police party submitted false reports Under Section 107/117 Cr.P.C before the Special Court ACM Malir Karachi against the applicant's husband and also lodged two FIRs No. 168/2016 and FIR No. 171/2016 based on Application under Section 22-A Cr. P.C vide Application No. 490/2016 against the applicant and her husband and also got arrested the applicant's husband. He further submitted that the learned Additional Sessions Judge has erred in law and facts while dismissing the complaint without trial; and that such authority is not vested in the Court to dismiss the complaint by acquitting the private respondents under Section 265-H (1) Cr.P.C. He lastly prayed for allowing the Criminal Appeal.

3. Mr. Asif Mubarak Ali advocate for the respondents has supported the impugned order and prayed for dismissal of the Criminal Appeal.

4. I have heard the learned counsel for the parties and pursued the material available on record.

5. The crucial question involved in the present proceeding is whether the Illegal Dispossession Act, 2005 is applicable in the case of a family dispute arising out of inheritance or otherwise. Primarily this is a special law, which has been promulgated to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession by the property grabbers.

6. Under Section 7 of the Act, a specific provision for interim relief has been provided while under Section 8 meticulous provision has been made for the delivery of possession of the property to the owner, which reads as under:-

"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 subsection (2) 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. Provision of Section 3 of the Illegal Dispossession Act, 2005, is very clear and unambiguous and its scope is wide enough to cover the class of persons mentioned in the preamble. Therefore, the preamble of the Act cannot restrict its meaning and the Act applies to the dispossession of a person from property by any person including land grabbers, Qabza group, or land mafia.

2. To attract provisions of Section 3 of the Illegal Dispossession Act, 2005, the court is required to examine whether the property was an immovable property; secondly, whether the person was the owner or the property was in his lawful possession; thirdly the accused entered into or upon the property unlawfully; fourthly that such entry was to dispossess i.e. ouster, evict or deriving out of possession against the will of the person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power or influence or regulate or governor relates to authority over what is not in one's physical possession or to occupy i.e. holding possession, reside in or something. If the act of the accused comes within the meaning of any of the words viz. dispossess, grab, control or occupy on the date when Illegal Dispossession Act, 2005, was promulgated then action can be initiated as provided under Section 4 of the Illegal Dispossession Act, 2005.

3. The law has also made it clear that a person who is proven guilty shall not be saved from the punishment for which he may be liable under any other law for the time being in force. The provisions of section 3(2) are salutary and mandatory. It is to alleviate the suffering and is also an effective deterrent against crime. The Legislature has taken full care to close all doors of any injustice to the parties.

4. Further a complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the 7 relevant properties is being regulated by a civil or revenue Court. There is no cavil to the proposition that if the offense confines to the provisions of the Illegal Dispossession Act, 2005 then the land grabbers/Qabza Group/land mafia cannot escape punishment as no one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property however, in the present case both the parties are at loggerhead and claim and counterclaims, in such a situation prima facie it cannot be said at this stage that whether the case falls within the definition of Illegal Dispossession Act, 2005, therefore, at this stage, the proceedings under the said Act cannot be taken into its logical end until and unless it is decided whether the applicant had sold out his land to the private respondent or otherwise as both the parties relied upon certain documents which need to be appreciated by the trial court having plenary jurisdiction. In principle, the Court empowered to take cognizance of an offence under the Act, is required to filter out those complaints which do not disclose the requisite criminal intent. Courts that have been authorized to try cases under the Act, 2005 thus have a responsibility to see that the persons named in the complaint have a case to answer before they are summoned to face trial.

2025 P Cr. L J 183

[Sindh (Larkana Bench)]

Before Khadim Hussain Soomro, J

Waliullah Shah Mashwani---Appellant

Versus

Muhammad Usman Brohi and another---Respondents

Criminal Appeal No. S-27 of 2024, decided on 30th August, 2024.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), Ss. 345(5) & 345(6)---Illegal dispossession---Compromise---Scope---During the pendency of the instant appeal, both parties had compromised the matter outside court, and in that regard, they had filed joint applications under Ss. 345(5) & 345(6), Cr.P.C, along with supporting affidavit of complainant---Complainant submitted that possession of the property in dispute had been handed over to him; therefore, he, with the core of his heart, had forgiven the appellant; hence, they had filed compromise applications jointly and he did not want to prosecute the appellant anymore and he had no objection if the applications were allowed and the appellant was acquitted of the charge---Validity---Appellant-accused was convicted under subsection (2) of S.3 of the Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, did not specify whether the alleged offence was compoundable or non-compoundable---Section 9 of the Act mandated that, except where otherwise specified, the provisions of the Criminal Procedure Code, 1898, shall govern all proceedings conducted under the Act---Therefore, a compromise effectuated under the Act must be regarded as a compromise under S.345 of the Criminal Procedure Code---Moreover, it is recognized that parties to a dispute may reach an amicable resolution, signifying their commitment to co-exist in peace, tranquility, and harmony---Such principle reflected the legal philosophy that encouraged the settlement of disputes through mutual agreement, thereby promoting social stability and reducing the burden on the judicial system---In relation to the non-compoundability of specific offences, it was critical to interpret such provisions within the context of individual cases---Legal precedents suggested that a beneficial interpretation of statutory provisions should be favoured, allowing Courts to consider in accordance with the facts and circumstances of each case rather than applying a rigid interpretation---Such approach aligned with the broader legal philosophy of justice and equity, emphasizing that the spirit of the law should guide judicial outcome to foster reconciliation and uphold community harmony---In light of the compromise reached between the parties outside the Court, the complainant's decision not to pursue the case and his lack of objection to the appellant's acquittal, it was not appropriate to uphold the conviction---Therefore, in order to maintain cordial relations between the parties in future, the application under S.345(5), Cr.P.C., was granted; resultantly, the application under S.345(6), Cr.P.C. was accepted---Appellant was acquitted of the charge by way of compromise.

Muhammad Rawad v. The State 2004 SCMR 1170; Zulfiqar-ud-Din v. The State and others PLJ 2022 SC Cr.C. 40; Shahid v. The State and another 2017 YLR Note 81; Ali Raza and another v. The State and another PLD 2013 Lahore 651; Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26 and Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others PLD 2012 Lah. 305 rel.

Habibullah G. Ghouri along with Appellant (on bail).

Ali Anwar Kandhro, Additional Prosecutor General.

Respondent No. 1/Complainant Muhammad Usman Brohi present in person.

Date of hearing: 30th August, 2024.

Order

Khadim Hussain Soomro, J.---Through instant Criminal Appeal, the appellant has assailed the judgment dated 04.05.2024 passed by learned 3rd Additional Sessions Judge, Shikarpur, in Cr. Complaint No.69/2018 (Re: Muhammad Usman Brohi v. Waliullah Shah and another) whereby appellant Waliullah Shah, son of Akram Shah has been convicted for offence under Section 3 of Illegal Dispossession Act, 2005 and sentenced to undergo imprisonment for five years and to pay Rs.50,000/-, in default whereof to serve three months more in prison; the appellant has also been directed to pay compensation to the complainant for Rs.100,000/- (rupees one lac) and in default thereof, same shall be recovered from him as arrears of land revenue. The Mukhtiarkar and the S.H.O. concerned were directed to restore possession of the disputed property to the complainant.

1. During the pendency of the instant appeal, both parties have compromised the matter outside the court, and in this regard, they have filed joint applications under Sections 345(5) and 345(6) of Cr.P.C along with supporting Affidavit of complainant Muhammad Usman Brohi. Respondent No.1/complainant Muhammad Usman Brohi, present in person, submits that possession of the property in dispute has been handed over to him; therefore, he, with the core of his heart, has forgiven the appellant; hence, they have filed compromise applications jointly, and he does not want to prosecute the appellant anymore, and he has no objection if these applications are allowed and the appellant is acquitted of the charge.

2. Learned Counsel for the appellant submits that the appellant has already put the complainant under peaceful and vacant possession of the land in dispute. He, therefore, submits that by granting compromise applications, the appeal may be disposed of, and the appellant may be acquitted of the charge.

3. Learned Addl. P.G.has recorded his no objection if the compromise applications are allowed.

4. A joint application for compromise between the appellant and the complainant/respondent, supported by affidavits, has been duly recorded. The complainant/respondent has also provided a statement confirming that possession of the disputed property has been relinquished to him, and consequently, he raises no objection to the acquittal of the appellant/accused from all charges, including the imposition of any fine. This statement has also been recorded.

5. The appellant-accused was convicted under subsection (2) of Section 3 of the Illegal Dispossession Act, 2005. The Illegal Dispossession Act 2005 does not specify whether the alleged offence is compoundable or non-compoundable. Section 9 of the Act mandates that, except where otherwise specified, the provisions of the Criminal Procedure Code, 1898, shall govern all proceedings conducted under the Act. Therefore, it is my considered view that a compromise effectuated under the Act must be regarded as a compromise under Section 345 of the Criminal Procedure Code.

6. It is important to note that the enumeration of offenses in Section 345 of the Criminal Procedure Code is clear and unequivocal, thereby eliminating any doubts or uncertainties and serving as a complete and comprehensive framework for the compounding of offences. The prevailing judicial consensus asserts that the Legislature has established, within this section, the criteria for distinguishing between offences that pertain solely to individuals and those that concern the interests of the state. Courts cannot exceed this prescribed framework or impose an alternative standard. The alleged offence is contrary to public policy or against the State. The alleged offence can be compounded as it fulfils all the conditions outlined in Section 345 of the Criminal Procedure Code.

7. In the case of Muhammad Rawad v. The State 2004 SCMR 1170, the honourable apex court of Pakistan has observed as under:-

"3 ………….It may be noted that tabulation of the offences as made under section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345. Cr.P.C. are satisfied as to all 'matters mentioned in the section'

1. The august Supreme Court of Pakistan, in the case of Zulfiqar-ud-Din v. State and others (PLJ 2022 SC Cr.C. 40), has held as under:-

"During the pendency of the appellant's appeal before the High Court the complainant namely Umer Ahsan (PW-4) as well as the alleged victims namely Mst. Alia Bibi (PW-5) and Mst. Haleema Bibi (PW-6) had sworn affidavits maintaining therein that the present appellant has been implicated in the present case on account of some misunderstanding, the appellant had not abducted anybody and the allegation of rape levelled against him was also a result of misunderstanding. The complainant had personally appeared before the High Court at the time of hearing of the appellant's appeal and he had owned the affidavits sworn by him and the two victims. It is important to notice here that the said stand taken by the complainant and the alleged victims had been accepted by the High Court and resultantly the appellant had been acquitted of all the charges pertaining to the compoundable offences and his sentences vis-a-vis the non-compoundable offences were reduced by the High Court. We are of the opinion that if the High Court was minded to accept the affidavits sworn by the complainant and the alleged victims, in which affidavits it had been maintained that the allegations levelled against the appellant were factually incorrect, then instead of reducing the sentences of the appellant vis-a-vis the non-compoundable offences the High Court ought to have rejected the prosecution's case as a whole entailing acquittal of the appellant, but unfortunately that course was not adopted by the High Court. "Further reliance can be placed in the case of Ghulam Shabbir and another v. The State (2003 SCMR 663), 10. In another case reported as Shahid v. The State and another (2017 YLR Note 81 [Lahore]), it was held as under:

"Needless to say, compromise even in non-compoundable offences makes a crucial circumstance and a redeeming feature which helps the warring-parties come close to each other and live peacefully onwards. Let non-compoundable nature of the offences under sections 452, 354, P.P.C. not frustrate their noble intentions."

1. The Honourable Lahore Court in the case of Ali Raza and another v. The State and another reported in PLD 2013 Lahore 651 made following observations:

"The offence alleged is certainly non-compoundable but the eagerness of the parties to settle their dispute by executing an agreement, in mentioned terms has to be given a sense of respect, so that they may harvest benefit thereof. The complainant and his wife, who are doctors/ medical-officers by profession, hence, educated persons; well understand the ins and outs of the compromise arrived at and they, being, present in person like Mst. Kalsoom Bibi accused have expressly stated that they on account of compromise do not intend to prosecute the accused-petitioners further, if the loss allegedly sustained by the complainant and his wife at the hands of the accused/ petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties"

2025 P Cr. L J 203

[Sindh]

Before Mohammad Karim Khan Agha, J

Johan Masih---Appellant

Versus

The State---Respondent

Criminal Appeal No. 222 of 2022, decided on 18th September, 2024.

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

----Ss. 397 & 34---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 for robbing the complainant at gun point and was apprehended at the spot---Record showed that the S.154 Cr.P.C statement was lodged on the spot immediately after the incident which led to the FIR being lodged within one hour---Hence there was no delay in the lodgment of the FIR---Appellant was arrested on the spot by the police from whom the stolen items and an unlicensed pistol was recovered, and he was named in the promptly lodged FIR with the specific role of robbing the complainant by show of firearm---Even otherwise no specific/proven enmity had come on record between the appellant and the complainant or any witness which would motivate him/them to lodge a false case or give false evidence against the appellant---Circumstances established that prosecution had proved its case against the appellant beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 397 & 34---Robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Ocular account proved---Accused was charged for robbing the complainant at gun point and was apprehended at the spot---Ocular account of the incident had been furnished by complainant, his fiancé and a Patrolling Officer---Complainant was an independent eye-witness and he had no relationship with the accused and had no ill will or enmity with him so as to involve him in a false case---Promptly lodged S. 154 Cr.P.C statement was not materially improved upon during the course of evidence of complainant---Complainant was not damaged during a lengthy cross-examination---Items which were robbed from complainant were recovered when he was arrested on the spot together with an unlicensed pistol hence the question of misidentification did not arise---Fiancé of complainant who was with the complainant at the time of robbery corroborated the complainant in all material respects---Said witness was an independent witness who had no reason to falsely implicate the accused in the crime---Statement of said witness under S.161, Cr.P.C was made within a day of the incident and her evidence was not materially improved from the same which was found to be trust worthy, reliable and confidence inspiring and hence Court believed her evidence and placed reliance on it---Patrolling Officer was informed of the incident and then he was able to grab hold of the accused while he was trying to make his escape good on foot whilst the other two persons made their escape good---Pistol used in the robbery was recovered from the accused when he was arrested on the spot along with the robbed items---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 appellant---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the complainant and his fiancé going out on a motor bike to the beach to them being intercepted by three others on a motor bike and robbed at gun point to the police arresting the accused on the spot with the unlicensed pistol and items which had just been robbed form the accused---It was true that there was no independent mashir however it had now become a judicially recognized fact that in such like cases independent members of the public did not want to involve themselves---As such the fact that there were no independent mashirs in the present case was not of huge significance especially when the eye-witness evidence was believed and the eye-witnesses were independent witnesses---Circumstances established that prosecution had proved its case against the appellant beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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; Qasim Shahzad and another v. The State 2023 SCMR 117; Muhammad Waris v. The State 2008 SCMR 784; Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

(c) Criminal trial---

----Police witness, evidence of---Reliance---Scope---Evidence of police witnesses was as good as any other witness.

Mushtaq Ahmd v. The State 2020 SCMR 474 rel.

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

----Ss. 397 & 34---Robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Co-accused acquitted on same set of evidence---Inconsequential---Accused was charged for robbing the complainant at gun point and was apprehended at the spot---Fact that the appellant's co-accused was acquitted of the charge was of no assistance to the appellant as his case was on a different footing---Namely, whilst the accused was arrested on the spot the co-accused made his escape good and was arrested on the statement of another co-accused (the appellant) and co-accused a few days later and co-accused was shown to the complainant before the identification parade, which made the identification parade of no legal value---Furthermore no stolen items were recovered from co-accused at the time of his arrest---Circumstances established that prosecution had proved its case against the appellant beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Ms. Fariyal Ishaque for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh; Mumtaz Ali Shah and Syed Arshad Hussain Naqvi, Addl. P.G. Sindh for the State.

Date of hearing: 11th September, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Johan Masih son of Arif Masih, was tried in the Court of IXth Addl. District and Sessions Judge (South) Karachi in Session Case No.1999 of 2020 arising out of FIR No.87 of 2020 under Sections 397/34 P.P.C. registered at Police Station Sahil, Karachi and vide Judgment dated 22.03.2021 he was convicted and sentenced under section 392 P.P.C. to suffer R.I. for 03 years and pay fine Rs.10,000/- (Rupees Ten Thousand only). In case of default in payment of fine he shall suffer SI for (03) months more. However, he was also given the benefit of Section 382-B Cr.P.C.

1. The brief facts of the case are that on 17.08.2020 at about 0015 hours, complainant along with his fiancée namely Mona Liza were on his motorcycle at Do Deryia meanwhile complainant went on his motorcycle to Sahil Avenue near Khayaban-e-Iqbal Phase-VIII, DHA Karachi where three persons duly armed on one motorcycle came and stopped him and snatched bag of complainant's fiancee containing mobile phone Infix Hot-8 along with SIM No.0331-6075683 and 0318-0267131, and also wallet of complainant containing duplicate colour copy of CNIC and cash of amount of Rs.500/- meanwhile complainant saw area police mobile and started shouting Daku Daku. On seeing the police mobile two persons fled away and one person was arrested on spot who on inquiry disclosed his name as Johan and he also disclosed absconder accused namely Shan and one unknown accused. Police conducted personal search and recovered one 30 bore pistol. along with 02 bullets and police also recovered wallet and mobile of complainant from accused Johan, therefore complainant lodged FIR against accused persons. On 19-08-2020, accused Shan was arrested by police at Sahil Avenue near Khayaba n-e-Iqbal Phase VIII, DHA Karachi and police recovered one 32 Revolver without number along with loaded magazine containing two live bullets, accused arrested in another case/crime and admitted his guilt during investigation hence the complainant lodged the FIR against the nominated accused persons.

2. After usual investigation the matter was challaned and the appellants were sent up to face trial. They pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution examined seven (07) PWs and exhibited various items and other documents. The appellants recorded their statements under Section 342 Cr.P.C. wherein they denied the allegations levelled against them and claimed their innocence. Neither of the appellants gave evidence on oath or called any witness in support of their defence case.

4. After appreciating the evidence on record, the learned trial court convicted and sentenced the appellant as set out earlier and hence, the appellant has filed this appeal against his conviction and sentence. The other appellant Shan was acquitted of the charge.

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 appellant has contended that the appellant is innocent and that he has been falsely implicated in this case; that the eye-witnesses are not reliable and their evidence should be disbelieved, that there are material contradictions in the evidence of the prosecution witnesses; that there was no independent mashir; the pistol and alleged robbed articles were foisted on the appellant by the police and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit and the doubt.

7. On the other hand Learned APG after going through the entire evidence of the prosecution witnesses as well as other record of the case supported the impugned judgment. In particular, he contended that the FIR was lodged promptly, the eye-witness evidence was trust worthy, reliable and confidence inspiriting and was to be believed; that the pistol was recovered from the appellant on his arrest on the spot along with robbed items immediately after the robbery and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed.

8. I have heard the learned counsel for the appellant as well as learned APG and have also perused the material available on record.

9. After my reassessment of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(a) The Section 154 Cr.P.C statement was lodged on the spot immediately after the incident which lead to the FIR being lodged within one hour. Hence there is no delay in the lodgment of the FIR leaving the appellant no time to cook up a false case against the appellant.

(b) The appellant was arrested on the spot by the police from whom the stolen items and an unlicensed pistol was recovered from the appellant who is named in the promptly lodged FIR with the specific role of robbing the complainant by show of firearm. Even otherwise no specific /proven enmity has come on record between the appellant and the complainant or any PW which would motivate him/them to lodge a false case or give false evidence against the appellant.

(c) The prosecution's case mainly rests on the eye-witnesses to the robbery and the immediate arrest of the accused on the spot whose evidence I shall consider in detail below;

(i) Eye-witness PW 1 Falix. He is the complainant in the case. According to his evidence on 16.08.2020 when he and his fiance Mola Liza were returning on his motor bike from Do Deryia at about 0015 he was intercepted by another motorbike with 3 person on it at Khy-e-ban Iqbal Phase VIII DI-IA who stopped them under show of firearms arms and snatched the hand bag of his fiance (Mola Liza) which contained a mobile phone and also snatched his wallet which contained a color copy of his CNIC and cash. The police mobile reached and caught the accused who was on foot who also named his acquitted co-accused and one unknown person as being involved in the robbery. Police recovered the robbed items and a pistol from the accused.

This eye-witness is an independent witness. He had no relationship with the accused and no ill will or enmity with him so as to involve him in a false case. His promptly lodged S.154 Cr.P.C Statement was not materially improved upon during the course of his evidence. He was not damaged during a lengthy cross-examination. The items which were robbed from him were recovered when the accused was arrested on the spot together with an unlicensed pistol hence the question of misidentification does not arise. Further it does not appeal to logic, reason or commonsense that the accused who the complainant did not know would be found with the complainants copy colour CNIC unless he had robbed it along with his wallet. I find his evidence to be reliable, trust worthy and confidence inspiring and I believe the same and place reliance on it.

(ii) Eye-witness PW 2 Mona Liza who was with the complainant at the time of the robbery corroborates the complainant in all material respects. She to was an independent witness who had no reason to falsely implicate the accused in the crime. Her S.161 Cr.P.C statement was made within a day of the incident and her evidence was not materially improved from the same which I also find to be trust worthy, reliable and confidence inspiring and hence I believe her evidence and place reliance on it.

(iii) Eye-witness PW 3 Mujahid Iqbal. According to his evidence he was on patrol and when he reached Khyaban-e-lqbal DHA at about 0015 hours he heard one person shouting shouting Daku, Daku who informed him of the incident and then he was able to grab hold of the accused while he was trying to make his escape good on foot whilst the other two persons made their escape good. The accused informed him that his name was Joham from which a pistol and robbed items were recovered. The accused also told him the name of his co-accused Shan who was arrested two days later. He recorded the complainants S.154 Cr.P.C statement on the spot.

Admittedly this eye-witness who arrested the accused on the spot with the unlicensed pistol and recovered items was a police officer. However he had no ill will or enmity with the appellant and as such he nor any other police witness had any reason to falsely implicate the appellant in this case. For instance by foisting the pistol on him. 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 Mushtaq Ahmed v. The State (2020 SCMR 474). Thus, I believe the evidence of this police eye-witness as well as the IO and other police witnesses who were not dented during cross-examination.

Thus, I find the evidence of this eye-witness to be reliable trust worthy and confidence inspiring and believe the same.

It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his/her evidence to be trust worthy, reliable and confidence inspiring and in this case I have found the evidence of three eye-witness to be trust worthy, reliable and confidence inspiring especially in respect of the correct identification of the appellant who committed the robbery by show of arms and who was arrested on the spot along with robbed items and as such I believe the same arid place reliance their evidence . In this respect reliance is placed on the cases of 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 Qasim Shahzad and another v. The State (2023 SCMR 117). Their evidence is also of good quality and it is settled by now that it is not the length of the evidence which is of importance but its quality.

Having believed the evidence of the three eye-witnesses as to the robbery of the complainant and his fiance and the recovery of the unlicensed pistol from the accused I turn to consider the corroborative/supportive evidence whilst keeping in view that it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under;

"Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for any corroboration"

(d) That the pistol used in the robbery was recovered from the accused when he was arrested on the spot along with the robbed items.

(e) 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 SC 669). The evidence of the PWs provides a believable corroborated unbroken chain of events from the complainant and his fiancee going out on a motor bike ride to the beach to them being intercepted by three others on a motor bike and robbed at gun point to the police arresting the accused on the spot with the unlicensed pistol and items which had just been robbed from the accused.

2025 P Cr. L J 256

[Sindh (Mirpurkhas Bench)]

Before Muhammad Saleem Jessar, JJ

Aslam alias Ghaloo---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. S-15 of 2024 (new) and S-185 of 2017 (old), decided on 27th June, 2024.

Penal Code (XLV of 1860)---

----Ss. 376, 511, 452(2), 337-H(2) & 34---Criminal Procedure Code (V of 1898), S. 345---Rape, attempted rape, house-trespass after preparation for hurt, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, common intention---Appreciation of evidence---Compounding of offence---Accused was charged for attempting rape with the complainant after entering her house---Appellant and complainant due to indulgence of community people settled down their differences outside the Court---No doubt appellant was tried for the charge under Ss.376, 511, read with S.452, P.P.C; however, at the time of trial prosecution did not adduce sufficient evidence in respect of Ss.376, 511, P.P.C., hence Trial Court while making discussion over points for determination had acquitted the appellant from the charges of Ss.376, 511 P.P.C and had convicted him for the charge of S.452 P.P.C only---Though the offence with which the appellant stood convicted was not compoundable, however, appellant had remained in jail for some time, besides the offence with which he stood charged pertained to year 2016, thus had been facing agony of trial as well as proceedings of instant appeal right from 2016, for a period of about 08 years, which was sufficient punishment for him---At this juncture when the complainant/victim herself did not wanted to prosecute the appellant anymore and they being inhabitants of same area wanted to live peacefully by maintaining law and order situation as well as tranquility, in such a situation parties may be allowed to live peacefully, even in a case when the offence with which accused was charged was non-compoundable---In such circumstances, it would be in the best interest of justice, equity and fair play that the compromise arrived at between the parties in instant case in respect of non-compoundable offences was accepted/allowed to take effect---Appeal was allowed, in circumstances.

Ashiq Solangi and another v. The State PLD 2008 Karachi 420; Aamir and 2 others v. The State and another 2011 MLD 1468; Ghulam Shabbir and 2 others v. The State 2003 SCMR 663; Ali Raza and another v. The State and another PLD 2013 Lahore 651; Tasawar Hussain v. The State and another 2021 YLR Note 124 and Muhammad Jamil and others v. The State and another 2013 PCr.LJ 1458 rel.

Hemandas S. Sanghani is called absent without intimation for Appellant present in person(on bail).

Shahzado Saleem, Additional Prosecutor General, Sindh for the State.

Shr. Lachmi, for Complainant (in person along with her brother Laloo Mal).

Date of hearing: 27th June, 2024.

Judgment

Muhammad Saleem Jessar, J.---By means of instant Criminal Appeal, the appellant has assailed Judgment dated 18-08-2017 passed by learned First Additional Sessions Judge, Mirpurkhas (trial court), vide Sessions Case No.181 of 2016, Re: S/V Aslam alias Ghaloo Khoso, being outcome of FIR No.54 of 2016, registered at P.S Jhudo, for offence under Sections 376, 511, 452(2), 337-H(2), 34 P.P.C., whereby appellant was convicted as under:-

For offence punishable under section 452 P.P.C. to suffer R.I for three years and to pay fine of Rs.50,000/= and in case of default in payment of fine to suffer S.I for four months more.

However, benefit in terms of section 382-B Cr.P.C was extended to the appellant.

1. Concisely, the complainant Shrimati Lachmi lodged FIR at P.S Jhudo on 18-6-2016 at 1210 hours, alleging therein that accused Aslam alias Ghaloo was teasing her with intention to make friendship with him. On 18-6-2016 she, her sister Shrimati Baby, mother Shrimati Devi and father Kewal were present in the house. Meanwhile at about 11-30 a.m accused persons namely Aslam alias Ghaloo Khoso and Niaz Ali Khoso, duly armed with pistol, forcibly entered into their house. Accused Niaz Ali Khoso pointed out his pistol and accused Aslam alias Ghaloo attempted to commit rape with her. She raised hue and cry, on which her sister Shrimati Baby, Gajoo, Nanak and others arrived there and caught hold accused Aslam alias Ghaloo while accused Niaz Ali Khoso by making ariel firing ran-away from the spot, Thereafter, complainant party brought captured accused Aslam alias Ghaloo at P.S, handed over him to police and then complainant lodged the FIR in terms stated above.

2. After registration of FIR investigation was conducted. On completion of investigation, challan was submitted before learned Magistrate concerned. Since the offence is exclusively triable by the Court of Sessions, therefore, learned Magistrate sent the R&Ps to Sessions Judge, Mirpurkhas, wherefrom it was assigned to the trial Court for its disposal in accordance with law. Learned trial court framed formal Charge against the accused at Ex.02, to which he pleaded not guilty and claimed trial vide his plea at Ex.02-A. In order to prove its Charge, the prosecution examined in all five (05) witnesses at Ex.03 to 08, who produced and recognized certain documents, then prosecution closed its' side at Ex.09. Statement of accused, as required under Section 342 Cr.P.C was recorded at Ex.10 wherein he denied the allegations levelled by prosecution against him; however, neither he examined himself on Oath nor produced any witness in his defense. Finally learned trial Court after hearing the arguments of learned counsel for the parties, convicted and sentenced to present appellant, as mentioned supra.

3. At the very outset appellant and complainant/ victim Shr. Lachmi present in court state that due to indulgence of community people they have settled down their differences outside the court; hence they do not intend to prosecute each other anymore. The complainant at the moment is also victim states that she has no objection if by granting instant appeal appellant may be acquitted of the charge.

4. Learned A.P.G after going through impugned judgment submits that prosecution has failed to establish its charge against appellant in terms of section 376 read with section 511 P.P.C., therefore, he has been acquitted by the trial court from said charge; however, charge against him in terms of section 452 P.P.C. was proved, therefore, he has been convicted and sentenced to 03 years. As far as proposal with regard to compromise between the parties outside the court is concerned, learned A.P.G submits that offence with which appellant has been convicted is not compoundable, therefore, he is not entitled for the relief sought for. Learned A.P.G; however, is not in a position to controvert the fact that complainant/ victim who is present in court does not want to prosecute the appellant anymore; in such an eventuality lingering on the proceedings would fruit nothing but wastage of the precious time of the court.

5. Heard. Record perused.

6. No doubt appellant was tried for the charge under sections 376, 511 read with section 452 P.P.C.; however, at the time of trial prosecution did not adduce sufficient evidence in respect of sections 376, 511 P.P.C., hence trial court while making discussion over points for determination has acquitted the appellant from the charge(s) of sections 376, 511 P.P.C. and has convicted him for the charge of section 452 P.P.C. only. Though the offence with which the appellant stands convicted is not compoundable, however, appellant has remained for some time inside jail besides the offence with which he stands charged pertains to year 2016, thus has been facing agony of trial as well as proceedings of instant appeal right from 2016 till today i.e. for a period of about 08 years, which is sufficient punishment for him. At this juncture when the complainant/ victim herself does not want to prosecute the appellant anymore and they being inhabitants of same area want to live peacefully by maintaining law and order situation as well as tranquility, the superior courts have time and again held that in such a situation parties may be allowed to live peacefully, even in a case when the offence with which accused is charged is non-compoundable. In this connection I am fortified and guided from the dictum laid down by learned Bench of this court in case of Ashiq Solangi and another v. The State (PLD 2008 Karachi 420), wherein it is held as under:-

"2. The applicants were convicted under sections 452, 337-H(2), 506/2 and 148, P.P.C. The legal question is that certain offences are compoundable and certain offences are not compoundable. I am of the clear view that if the main offence is compoundable and parties have compromised against themselves then the small offences should be treated as compromised though under the statute those are not compoundable. In the present revision keeping in view the compromise which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially when the complainant does not want to pursue his case anymore. In the circumstances I accept the revision application and order acquittal of both the applicants from the charge. Their conviction and sentence is set aside. They are present on bail, their bail bonds are cancelled and sureties discharged."

1. In case of Aamir and 2 others v. The State and another (2011 MLD 1468 [Lahore]), Honourale Lahore High Court, held as under:

"9. Now I advert to the factum whether compromise can be effected in non-compoundable offence. I am of the view that the compromise is meant to promote harmonious living and maintain cordial relations between the parties. This view was affirmed by august Supreme Court of Pakistan in the case of Ghulam Shabbir and 2 others v. The State (2003 SCMR 663)."

1. In case of Ghulam Shabbir and 2 others v. The State, reported in 2003 SCMR 663, decided by a Full Bench of Honourable Supreme Court, which was also relied upon in the case of AAMIR and 2 others (supra), the accused were tried for the charge under sections 302/324/337-A(ii)/148 and 149, P.P.C read with section 9 and sections 6, 7 and 8 of Anti-Terrorism Act, 1997 by the Special Court constituted under Anti-Terrorism Act, 1997, in pursuance of FIR. No. 174, dated 13th August, 1993 registered at Police Station Jand, District Attock. On conclusion of the trial the trial Court found the accused persons guilty of the charge and vide judgment dated 23rd September 2000 convicted and sentenced them for the above said offences. The accused were also convicted under Section 9 of ATA, 1997 and sentenced to undergo 4 years' R.I. each with fine of Rs.10,000 each in default whereof to undergo 2 months' R.I. In Appeal, Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi, modified the sentences awarded under Sections 302/149, whereas the accused were acquitted for the offences under Sections 324/149 P.P.C.. However, rest of the conviction / sentence was maintained, which also included conviction and sentence of R.I. for four years under Section 9 of the ATA, 1997. Thereafter, a Criminal Miscellaneous Application was filed on behalf of the accused persons, wherein it was stated that rival parties have compounded the offence and have forgiven to each other in the name of Almighty Allah and in this behalf a compromise had been effected, therefore, it was prayed that the same may be accepted and the accused may be acquitted of the charge. Honourable Supreme Court allowed said application holding as under:

"Accordingly, the permission to compound the offence in view of subsection (5) of section 345 of the Cr.P.C. is accorded to the parties in order to maintain cordial relations and bury their hatchets forever. Resultantly, Criminal Miscellaneous No. 123 of 2002 is allowed…… Since leave to compound the offence is allowed, as such we set aside the conviction / sentence of the petitioners as well as impugned judgment dated 25th September, 2001. The petitioners namely Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-e-Din and Mushtaq Ahmed are acquitted under subsection (6) of section 345, Cr.P.C. They are directed to be released forthwith, if not required in any other case."

1. It may be pointed out that in captioned case Honourable Supreme Court allowed the compromise application although the accused were also convicted under Section 9 of the Anti-Terrorism Act, 1997 which is a non-compoundable offence.

2. In another case of Ali Raza and another v. The State and another, reported in PLD 2013 Lahore 651, it was held as under:

"If the loss allegedly sustained by the complainant and his wife at the hands of the accused / petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties."

1. In case of Tasawar Hussain v. The State and another (2021 YLR Note 124 [Islamabad]), it was held as under:

"7. Section 345, Cr.P.C. relates to compounding offences and subsection (1) of section 345 provides that the offences under the sections of the Pakistan Penal Code specified in the first and second columns of the table given therein may be compounded by the persons mentioned in the third column of that table.

8. Offence of robbery as mentioned in section 392 of Pakistan Penal Code does not find mention in the table given in section 345, subsection (1) of the Criminal Procedure Code and, therefore, is not compoundable. Similarly, section 411 of Pakistan Penal Code does not figure in the table mentioned under section 345, Cr.P.C. and, therefore, is not compoundable. However, the fact that the complainant himself has executed the affidavit, wherein he has undertaken that he has forgiven the petitioner/accused on the name of Allah Almighty and shall have no objection if the petitioner / accused is acquitted or released on bail after arrest, may be considered as the ground for the grant of bail in the interest of justice and equity. Where the complainant party is no longer willing to prosecute the matter any further then it is not for this Court or the Courts subordinate to it to compel the parties to do so, as the saying goes, "you can take the horse till the water but you cannot make him drink".

9. In the similar case reported in "Muhammad Akram v. The State 1995 MLD page 1826" the factum of compromise was taken into consideration and bail was granted. More or less, the same view was taken in a case of rape in the case reported in "Mst. Mussarat Elahi alias Bibi v. The State 1997 PCr.LJ 1193", and the Supreme Court of Pakistan took judicial notice of a compromise in a matter which was otherwise not compoundable and converted the petition for Special Leave to Appeal into an appeal and, therefore, accepted the appeal by reducing the sentence to that which had already been undergone in the case of Ghulam Ali v. The State reported as 1997 SCMR 1411.

10. Thus, I am fortified in my opinion that judicial notice of a compromise having taken place can be taken even in offences which are not compoundable.

2025 P Cr. L J 280

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed and Zulfiqar Ali Sangi, JJ

Abdul Sattar---Appellant

Versus

Ishaque and 3 others---Respondents

Criminal Acquittal Appeal No. D-36 of 2023, decided on 31st October, 2023.

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

----Ss. 302(b), 452 & 149---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, house trespass, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Accused were charged for committing murder of the daughter of the complainant---Record showed that the complainant, his son and daughter-in-law were all present at the time of the alleged attack, but the accused was said to have ignored all three of them and targeted deceased, with whom he had no concern or grudge, which was incongruous, hence damaging to the prosecution's case---Only eye-witnesses produced were the appellant and his son and the prosecution did not call any independent persons from the locality to examine them as a witness, albeit the alleged incident being shown to have taken place during the morning hours, at 9.30 am, and it was claimed that there were other houses in the vicinity---If the body of deceased had been taken to the hospital by the prosecution witnesses, their hands and clothes ought to have been smeared with blood, but the appellant deposed that their clothes were not smeared---Complainant had stated that drops of blood had fallen on the seat of the rickshaw in which the body was transported, but that was contradicted by a witness, who stated that the rickshaw was not stained with blood---Investigating Officer failed to recover the weapons said to have been used in the commission of alleged offence or collect any Call Data Record reports to establish the presence of the respondents at the place of occurrence at the relevant time---While the Investigating Officer secured the last worn clothes of the deceased on 20.11.2020, the same were dispatched to the Chemical Laboratory on 26.11.2020 and then, received on 30.11.2020, after a delay of 10 days---Investigating Officer also secured one 30 bore empty, but the same was not sent to Forensic Science Laboratory for analysis---Record showed that the Woman Medical Officer found that one injury on the person of the deceased was blackened, but none of the witnesses deposed that any of the accused had caused injuries from a close range---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 452 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, house trespass, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Central witness given up---Effect---Accused were charged for committing murder of the daughter of the complainant---Record showed that the son of the complainant and a central character in the motive ascribed for the attack, was shown to have been present at the spot at the relevant time, but was given up as witnesses by the prosecution, hence a presumption or inference may be drawn in term of Illustration (g) of Art.129 of the Qanun-e-Shahadat, 1984, that had he been called and examined, he would not have supported the prosecution---Thus, non-examination of son of complainant also undermined the prosecution's case---Appeal against acquittal was dismissed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in a prudent mind as to the guilt of the accused entitles him to that benefit, not as a matter of grace or a concession, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 417---Appeal against acquittal---Scope---Presumption of innocence applies doubly upon acquittal---Such finding is not to be disturbed unless there is some discernible perversity in the determination of the Trial Court that can be said to have caused a miscarriage of justice.

State v. Abdul Khaliq PLD 2011 SC 554 rel.

Lohac Muhammad Mithal for Appellant.

Nemo for Respondents.

Date of hearing: 31st October, 2023.

Judgment

Yousuf Ali Sayeed, J.---The Appellant, who is the complainant of Crime No. 235 of 2020 registered at Police Station Naushehro Feroze, under Sections 452, 302 read with Section 149 P.P.C. (the "FIR"), has preferred the captioned Appeal under Section 417 (2A) Cr.P.C., impugning the Judgment entered by the learned Additional Sessions Judge-III Naushehro Feroze on 12.10.2023 in the ensuing Session Case, bearing No. 201 of 2021, resulting in the acquittal of the Respondents Nos. 1 to 3, namely Ishaque, Meer Khan and Muhammad Muneer respectively, and the case against the Respondent No.4, namely Zahid Hussain, being kept on the dormant file in view of his absconsion.

1. Succinctly stated, through the FIR the Appellant had alleged that the murder of his daughter, namely Khusboo, had taken place at the hands of the Respondents on 20.11.2020.

2. The sequence of events forming the backdrop to the fatality was traced back by the Appellant to the marriage of his son, Sanas Ali, to one Naveedan, who was the former wife of the Respondent No.4, with it being said that he had been issuing threats to the Appellant since the time of their union. It was stated by the Appellant that on the fateful day, he was at home along with Sanas Ali, Khushboo, Naveedan and his other son, namely Qurban Ali, when, at 0930 hours, the Respondents Nos. 1 and 4 entered armed with pistols and the latter fired upon his daughter with the bullet striking her in the abdomen so as to claim her life. It was said that those two Respondents then proceeded to leave the house, at which time the Appellant and his relatives followed them till the outer door, and saw the Respondents Nos. 2 and 3 standing outside next to two motorcycles. It is said that the Respondents pointed their weapons at them and issued threats that they would be killed if they were pursued further, prompting the Appellant and others to stop in their tracks, whereafter the Respondents then fled the scene. It was said that the body of the deceased was then taken to the Civil Hospital, Naushehro Feroze, after which it was interred following the post mortem, with the Appellant appearing at the police station at 1300 hours the next day (i.e. 21.11.2020) for registration of the FIR.

3. After the usual investigation the police submitted the challan, with the case then being sent-up to the Sessions Court for disposal in accordance with law, where the Respondents entered a plea of not guilty in response to the charge and claimed trial, during the course of which the prosecution, while giving up Sanas Ali through a formal statement, proceeded to call several other witnesses who produced various documents, as specified hereinunder: -

(i) PW-1, the Appellant/complainant Abdul Sattar Lashari, who produced the receipt of delivery of the dead body of the deceased and the FIR;

(ii) PW-2, Qurban Ali, who came forward as an eye witness, and produced a Danishnama, mashirnama of inspection of the dead body, mashirnama of the last worn clothes of the deceased, and mashirnama of the inspection of the place of wardat, securing of blood-stained clay and recovery of an empty;

(iii) PW-3, SIP Ishaque Mallah, the investigating officer, who produced carbon copy of the Lash Chakas Form, the departure and arrival entries, and Chemical Report.

(iv) PW-4, Muhammad Jameel Rajput, the tapedar, who produced a police letter and a sketch of the place of incident.

(v) PW-5, Dr. Shahzadi Sarwat, the medical officer, who produced a police letter, the Lash Chakas Form, provisional post mortem report, Chemical Report, and final post mortem report of the deceased.

1. A perusal of the impugned Judgment reflects that from a cumulative assessment of the evidence, the learned trial Court determined that the prosecution had failed to prove the guilt of the Respondents, hence duly extended them the benefit of doubt, resulting in their acquittal, with it inter alia being observed that:

(a) The actions attributed to the Respondents ran contrary to the motive ascribed by the Appellant in as much as he, Sanas Ali and Naveedan were all present at the time of the alleged attack, but the Respondent No.4 is said to have ignored all three of them and targeted Khushboo, with whom he had no concern or grudge. This was regarded as incongruous, hence beggared belief and was seen as damaging to the prosecution's case.

(b) The only eye-witnesses produced were the Appellant and his son and the prosecution did not call any independent persons from the locality to examine them as a witness, albeit the alleged incident being shown to have taken place during the morning hours, at 9.30 am, and it being said that there were other houses in the vicinity.

(c) If the body of Khushboo had been taken to the hospital by the prosecution witnesses, their hands and clothes ought to have been smeared with blood, but the Appellant had conceded during his cross-examination deposed that their clothes were not smeared. He had stated however that drops of blood had fallen on the seat of the rickshaw in which the body was transported, but that was contradicted by PW Qurban Ali, who stated under cross-examination that the rickshaw was not stained with blood.

(d) The investigating officer failed to recover the weapons said to have been used in the commission of alleged offence or collect any CDR reports to establish the presence of the respondents at the place of occurrence at the relevant time.

(e) While the investigating officer secured the last worn clothes of the deceased on 20.11.2020, the same were dispatched to the Chemical Laboratory on 26.11.2020 and then too, received on 30.11.2020, after delay of 10 days.

(f) While the investigating officer also secured one 30 bore empty, the same was not sent to FSL Larkana for analysis.

(g) The record shows that the WMO found that one injury on the person of the deceased was blackening, whereas none of the witnesses deposed that any of the accused had caused injuries from a close range.

1. Moreover, we have observed that Sanas Ali, the Appellant's son and a central character in the motive ascribed for the attack, was shown to have been present at the spot at the relevant time, but was given up as witnesses by the prosecution, hence a presumption or inference may be drawn in terms of Illustration (g) of Article 129 of the Qanun-e-Shahadat Order, 1984, that he been called and examined, he would not have supported the prosecution. Thus, his non-examination also undermines the prosecution's case.

2. When called upon to demonstrate the misreading or non-reading of evidence or other infirmity afflicting the impugned judgment, learned counsel for the Appellant was found wanting and could not point out any such error or omission and remained at a loss to show how a conviction was possible under the circumstances, particularly in view of the points noted herein above.

2025 P Cr. L J 369

[Sindh (Larkana Bench)]

Before Khadim Hussain Soomro, J

Mehrab BangUlani---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-36 of 2023, decided on 3rd October, 2024.

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

----Ss. 302(b), 311, 120-B & 34---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Hearsay evidence---Scope---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Admittedly, the evidence of all the prosecution witnesses was merely hearsay, and none of the prosecution witnesses claimed to have seen the appellant while committing the murder of deceased---In legal proceedings, hearsay evidence was generally regarded as lacking probative value unless accompanied by corroborative evidence that substantiated its credibility---As such, the admissibility of hearsay evidence hinged on the presence of additional corroborative material that reinforced its validity and enhanced its trustworthiness---Without such corroboration, hearsay evidence failed to meet the legal standards necessary to impact the outcome of the case, as it did not sufficiently establish the facts it purported to support---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 120-B & 34---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Star witness, evidence of---Scope---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Star witness of the prosecution was the mother of the deceased---During her examination-in-chief in the initial phase of the proceedings, she did not support the prosecution's case---Instead, mother of deceased testified that the seven accused were responsible for her daughter's murder---Star witness further stated that the police were reluctant to register the FIR, as per her verbatim, prompting her and other family members to organize a protest against the non-registration of the FIR---Such claim was corroborated by the prosecution witness and Investigating Officer who, in his cross-examination, acknowledged that mother of deceased and the other protesters demanded the registration of the FIR in accordance with their exact words---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 120-B & 34---Criminal Procedure Code (V of 1898), S. 353---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Evidence to be taken in presence of accused---Right to fair trial and due process---Scope---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Record showed that the examination-in-chief of star witness was recorded in the first round of proceedings---Examination-in-chief of the lady was recorded in the absence of the prosecutor as well as the complainant's counsel---Section 353, Cr.P.C, established that all evidence in a trial or inquiry must be taken in the presence of the accused, ensuring their awareness of the proceedings and ability to contest the evidence against them---If personal attendance was deemed unnecessary, the presence of the accused's legal representative (pleader) sufficed, allowing for continued legal representation---Said provision underscored the right to a fair trial, promoting transparency and the accused's participation in the judicial process---Courts must ensure accurate records of attendance, balancing the need for the accused's presence with practical considerations, such as health issues or logistical challenges---However, if the accused are absconding, the Court may proceed without them, albeit with caution, to uphold legal rights, particularly in serious criminal cases where the consequences of conviction are significant---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 120-B & 34---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Accused not involved in commission of offence---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Record showed that the appellant was present with the police during the postmortem examination, for identifying the deceased---Dead body was handed over to the appellant, as a legal heir of the deceased, for her funeral---If the appellant committed the murder of the deceased, then why was he not arrested during the above-cited events when the police accompanied him---Said fact showed that neither mother of deceased had nominated the appellant nor was he seen by the police at the place of the incident or involved in the commission of the offence---All the prosecution witnesses, while recording their examination-in-chief, did not identify the appellant present before the Trial Court to be the same person who committed the murder of the deceased---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 120-B & 34---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Conflicting versions---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Initially, the prosecution's narrative was based on the information provided by the police, which formed the foundation for the FIR and guided the investigation---However, with the inclusion of mother of deceased, a second, alternative version emerged---Testimony of said witness diverged from the police's account, highlighting inconsistencies in the prosecution's overall case---Instead of supporting the police narrative, mother of deceased presented facts that not only contradicted the official version but also introduced doubts about the reliability of the initial investigation---Existence of these two conflicting versions could lead to confusion regarding the actual circumstances surrounding the crime, which undermined the prosecution's position, as the jury or judge must grapple with which version of events to accept---Such scenario emphasized the necessity for a coherent and unified narrative in criminal proceedings, as inconsistencies could erode trust in the prosecution's case and may ultimately impact the pursuit of justice---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 120-B & 34---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Motive not proved---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Prosecution's allegation that the deceased was involved in an illicit relationship with one "AG", who was designated as "KARO"---According to the prosecution's narrative, the appellant was accused of murdering his sister and injuring "AG" at the time of the incident---However, during the proceedings before the Trial Court, "AG" did not support the prosecution's case---Instead, "AG" stated that he sustained his injuries at the hands of other culprits, thus distancing himself from the narrative presented by the prosecution---Said witness also reported the incident to the concerned police station, further complicating the prosecution's claims---Said testimony from "AG"was critical as it challenged the prosecution's assertion that the appellant acted out of jealousy or anger related to deceased's alleged relationship with him---By failing to corroborate the prosecution's allegations, "AG's evidence raised doubts about the motive attributed to the appellant and questioned the overall credibility of the prosecution's case---Divergence in testimonies further underscored the complexities of the case, as it highlighted inconsistencies in the prosecution's theory of the crime---Failure of key witnesses to support the prosecution's claims significantly weakened their position and put a heavy dent on the prosecution's case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 120-B & 34---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, common intention---Appreciation of evidence---Defective investigation---Accused was charged that he along with his co-accused person committed murder of the deceased lady by firing on the allegation of kari---Allegedly, the appellant had committed the murder of his sister in his Otaq, so some part of the onus had shifted to the appellant to explain the circumstances in which the deceased had died an unnatural death in his Otaque on the fateful day, which part of the onus had not been discharged by the appellant---However, investigating Officer failed to collect the title documents of the alleged Otaque from the relevant office---Suppose the Otaque was not registered in the name of any family member of the appellant; in that case, the Investigating Officer should have obtained a possession certificate for the house to link the appellant to the alleged recovery of the dead body---Nothing was brought to the record during the trial to establish a connection between the appellant and the alleged recovery---Appeal against conviction was allowed, in circumstances.

Asad Khan v. The State PLD 2017 SC 681 and Wajahat v. Gull Daras and others 2019 SCMR 1451 rel.

(h) Criminal trial---

----Police official as witness---Scope---Evidence of the police officials cannot be discarded simply because they belonged 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 the relevant time.

Saifullah v. The State 1992 MLD 984 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the 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.

Habibullah G. Ghouri for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Date of hearing: 3rd October, 2024.

Judgment

Khadim Hussain Soomro, J.---Through captioned appeal, appellant Mehrab son of Muhammad Hayat Bangulani, has challenged the judgment dated 14.10.2023, passed by learned 1st Additional Sessions Judge/Model Criminal Trial Court Judge, Kandhkot, in Sessions Case No.53/2022, Re-State v. Mehrab and another vide Crime No.113/2021 of Police Station Karampur, under Sections 302, 311, 120-B, 34, P.P.C., whereby the appellant was convicted and sentenced to suffer R.I for life by extending him a benefit of section 382-B Cr.P.C.

1. The prosecution story in a nutshell, as depicted in FIR lodged by complainant A.S.I. Manzoor Ahmed Jaffery, on 05.12.2021 at 1800 hours is that on 04.12.2021, he, along with other staff members, namely PC Altaf Hussain, PC Nadar Ali, and D.P.C. Muhammad Ayoob, left P.S. for patrolling. During patrolling, the complainant received spy information that Mst. Samul Khatoon, who, after the death of her husband Gada Ali Jakhrani, was residing with her brothers, has been murdered by accused Mehrab, Hidayatullah alias Haleem, Loung and two unidentified accused, after making conspiracy with accused Mureed son of Baggan Bangulani, by making gun fires upon her in the Otaq of Mehrab Banglani, on 04.12.2021, at 11:00 a.m., night. After that, the police party proceeded and arrived at the pointed place on 05.12.2021 at 01:00 a.m. near the Otaque of accused Mehrab Bangulani, where they found the dead body of a woman lying on a cot, and beside it, an old woman was available. Upon inquiry, the older woman revealed that the deceased was her daughter, Mst. Samul Khatoon, who had been murdered by the accused, Mehrab, Hidayatullah alias Haleem, Loung, of the Bangulani caste, and Mureed, son of Baggan Bangulani, based on a false allegation of KARAP. HC Muhammad Bux and PC Altaf were engaged as mashirs. The dead body of the deceased lady was inspected with the help of the above lady, and she was found to have firearm injury on the left bicep left breast, two shots near the navel and two fireshots on the left side of the abdomen. Such mashirnama, Laash Chakas Form, and Danistnama were prepared in the presence of mashirs. Then, the dead body was sent to the hospital through P.C. Nadar Ali for postmortem, whereas A.S.I. Manzoor Ahmed, along with other police officials, returned to P.S. and registered the FIR for the incident on behalf of the State.

2. After the usual investigation, a challan was submitted against the accused before the concerned court.

3. Perusal of the record reveals that the charge against appellant Mehrab Bangulani was initially framed. After that, the evidence of M.O Subhan Ali Jakhtrani, complainant Manzoor Ahmed Jaffery, eye-witness/mashir A.S.I. Muhammad Bux Chachar, corpse bearer P.C. Nadar Ali Bajarani, PW/dispatch rider D.P.C. Altaf Hussain Nasirani, Tapedar Muhammad Hussain Lashari and WMO Priyanka were recorded. They produced relevant documents and other artefacts in their evidence.

4. Thereafter, Counsel for the accused, Mehrab Bangulani, moved an application under section 540, Cr.P.C to summon Mst. Khanzadi, the mother of the deceased lady, Muhammad Hayat and Abdul Ghaffar, and to record their evidence subsequently, the application was allowed, and the evidence of Mst. Khanzadi was recorded wherein she implicated the accused Raheem, Basheer, Touk Ali, Ali Gohar, Sadique, Thangau, Mehrab son of Dangla and then Mst. Khanzadi filed an application under section 193, Cr.P.C, to join the above-named accused. The same application was allowed, and the accused Raheem, Basheer, Touk Ali, Ali Gohar, Sadique, Thangau, and Mehrab, son of Dangle, were joined. The charge was amended against the accused, whereby they pleaded not their guilt and claimed for trial.

5. To prove its case, the prosecution examined the complainant A.S.I. Manzoor Ahmed Jafferi, eye-witness/mashir A.S.I. Muhammad Bux Chachar, PC Altaf Hussain Nasirani, PW Mst. Khanzadi, the mother of deceased lady Mst. Samul, Corpse bearer P.C. Nadar Ali Bijarani, Tapedar Muhammad Hussain Lashari, M.O Subhan Ali Jakhrani, WMO Priyanka, HC Shah Ghazi Bajkani, I.O/ASI Balach Khan Nindwani and the In-charge Malkhana W.H.C. Aijaz Ahmed Meerani. They all produced the relevant documents in support of the prosecution case.

6. Learned trial Court, after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 14.10.2023, convicted and sentenced the appellant, as stated above.

7. Learned Counsel for the appellant contended that the mother of the deceased lady, i.e. Mst. Khanzadi was examined, who categorically exonerated the appellant from the commission of the murder of Mst. Samul Khatoon implicated the accused: Bashir, Rahim, Touk Ali, Ali Gohar, Sadiq, and Thangau. He further contended that there are so many contradictions among the officials P.W.s. He further asserted that, based on the evidence presented by Mst. Khanzadi, the accused, Raheem and Bashir, discharged their respective firearms at her daughter, Samul Khatoon, resulting in her death. He further contended that S.H.O. called Mst. Khanzadi for registration of FIR; however, he demanded a bribe from her, which she refused, and thereafter, S.H.O. detained her son Mehrab Bangulani. He further asserted that the mother of the deceased, Mst. Samul Khatoon, identified as Khanzadi, transported her daughter's remains to the roadway for a public demonstration as a form of protest. Learned Counsel for the appellant also contended that there are glaring contradictions and inconsistencies in the evidence of the prosecution witnesses, which were not noticed by the trial Court, resulting in a serious miscarriage of justice; therefore, looking at all the above material contradictions, the appellant is entitled to acquittal.

8. On the other hand, while opposing this appeal, the learned Deputy Prosecutor General contended that police officials had no enmity with the appellant to falsely implicate him in this case, that there was last seen evidence against the appellant coupled with medical evidence; that prosecution had proved it's case against the appellant beyond any shadow of doubt and prayed for dismissal of the instant appeal.

9. I have heard the arguments advanced by both sides and reassessed and re-examined the evidence available on the record.

10. According to the prosecution case, the police officials were on patrol duty. A.S.I. Manzoor Ahmed received spy information on 04.12.2021, at 2300 hours, that appellant, along with co-accused Hidayatullah alias Haleem and Loung, has committed the murder of his sister Mst. Samul Khatoon at his Otaq, on the conspiracy hatched by accused Mureed, on the allegation of 'Kari'. Police proceeded to the Otaq of the appellant and found the dead body of the deceased Mst. Samul Khatoon was lying there where Mst. Khanzadi, the mother of the deceased, was also available. A.S.I. Manzoor Ahmed conducted the requisite proceedings on the dead body after getting assistance from Mst. Khanzadi. Admittedly, the evidence of all the prosecution witnesses is merely hearsay, and none of the prosecution witnesses claimed to have seen the appellant while committing the murder of deceased Samul Khatoon. In legal proceedings, hearsay evidence is generally regarded as lacking probative value unless accompanied by corroborative evidence that substantiates its credibility. As such, the admissibility of hearsay evidence hinges on the presence of additional corroborative material that reinforces its validity and enhances its trustworthiness. Without such corroboration, hearsay evidence fails to meet the legal standards necessary to impact the outcome of the case, as it does not sufficiently establish the facts it purports to support.

11. The star witness of the prosecution was Mst. Khanzadi, the mother of the deceased. During her examination-in-chief in the initial phase of the proceedings, she did not support the prosecution's case. Instead, she testified that the accused Raheem Nindwani, Bashir Nindwani, Touk Ali Nindwani, Ali Gohar Nindwani, Sadiq Nindwani, Thangai Nindwani, and Mehrab Nindwani were responsible for her daughter's murder. She further stated that the police were reluctant to register the FIR, as per her verbatim, prompting her and other family members to organize a protest against the non-registration of the FIR. This claim is corroborated by the prosecution witness and Investigating Officer Bachal Khan, who, in his cross-examination, acknowledged that Mst. Khanzadi and the other protesters demanded the registration of the FIR in accordance with their exact words.

12. It is a matter of great concern that the examination-in-chief of Mst. Khanzadi was recorded in the first round of proceedings on 17.12.2022 at Ex-18. The examination-in-chief of the lady was recorded in the absence of the Prosecutor as well as the complainant's Counsel. Mst. Khanzadi, in her examination-in-chief, categorically stated that her daughter was killed by accused Raheem Nindwani, Bashir Nindwani, Touk Ali Nindwani, Ali Gohar Nindwani, Sadiq Nindwani, Thangai Nindwani and Mehrab Nindwani who were acquitted by the learned trial court. The police, instead of arresting the accused Mehrab Nindwani, had arrested her son namely, Mehrab Bangulani, compounding the family's anguish and highlighting the deficiencies in the investigative process.

13. Section 353 of the Code of Criminal Procedure (Cr.P.C.) establishes that all evidence in a trial or inquiry must be taken in the presence of the accused, ensuring their awareness of the proceedings and ability to contest the evidence against them. If personal attendance is deemed unnecessary, the presence of the accused's legal representative (pleader) suffices, allowing for continued legal representation. This provision underscores the right to a fair trial, promoting transparency and the accused's participation in the judicial process. Courts must ensure accurate records of attendance, balancing the need for the accused's presence with practical considerations, such as health issues or logistical challenges. However, if the accused is absconding, the court may proceed without them, albeit with caution, to uphold legal rights, particularly in serious criminal cases where the consequences of conviction are significant. The aforesaid section is reproduced as under:-

"Section 353 lays down the general rule that at any inquiry or trial, all evidence "shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader."

1. It is indeed perplexing that the appellant was present with the police during the postmortem examination, identifying the deceased. The dead body was handed over to the appellant, as a legal heir of the deceased, for her funeral. If the appellant committed the murder of the deceased, then why was he not arrested during the above-cited events when the police accompanied him? This shows that neither Mst. Khanzadi had nominated the appellant nor was he seen by the police at the place of the incident or involved in the commission of the offence. All the prosecution witnesses, while recording their examination-in-chief, did not identify the appellant present before the trial Court to be the same who committed the murder of the deceased.

2. The allowance of the application under Section 193 of the Code of Criminal Procedure has significant implications for the prosecution's case, effectively creating two conflicting versions of events. Initially, the prosecution's narrative was based on the information provided by the police, which formed the foundation for the FIR and guided the investigation; however, with the inclusion of Mst. Khanzadi, a second, alternative version emerged. Mst. Khanzadi's testimony diverged from the police's account, highlighting inconsistencies in the prosecution's overall case. Instead of supporting the police narrative, she presented facts that not only contradicted the official version but also introduced doubts about the reliability of the initial investigation. The existence of these two conflicting versions can lead to confusion regarding the actual circumstances surrounding the crime. It undermines the prosecution's position, as the jury or judge must grapple with which version of events to accept. This scenario emphasizes the necessity for a coherent and unified narrative in criminal proceedings, as inconsistencies can erode trust in the prosecution's case and may ultimately impact the pursuit of justice.

3. Another significant aspect of the case is the prosecution's allegation that Mst. Samul, the deceased, was involved in an illicit relationship with one Abdul Ghaffar Bangulani, who was designated as "KARO." According to the prosecution's narrative, the appellant is accused of murdering his sister, Mst. Samul, and injuring Abdul Ghaffar Bangulani at the time of the incident. However, during the proceedings before the learned trial court, Abdul Ghaffar Bangulani did not support the prosecution's case. Instead, he stated that he sustained his injuries at the hands of other culprits, thus distancing himself from the narrative presented by the prosecution. He also reported the incident to the concerned police station, further complicating the prosecution's claims. This testimony from Abdul Ghaffar is critical as it challenges the prosecution's assertion that the appellant acted out of jealousy or anger related to Mst. Samul's alleged relationship with him. By failing to corroborate the prosecution's allegations, Abdul Ghaffar's evidence raises doubts about the motive attributed to the appellant and questions the overall credibility of the prosecution's case. The divergence in testimonies further underscores the complexities of this case, as it highlights inconsistencies in the prosecution's theory of the crime. The failure of key witnesses to support the prosecution's claims significantly weakens their position and puts a heavy dent and bent on the prosecution's case.

4. As regards the contention of the D.P.G. for the State that the appellant had committed the murder of his sister in his Otaq, some part of the onus had shifted to the appellant to explain the circumstances in which the deceased had died an unnatural death in his Otaq on the fateful day, which part of the onus had not been discharged by the appellant. The investigating officer failed to collect the title documents of the alleged otaque from the relevant office. Suppose the Otaque is not registered in the name of any family member of the appellant; in that case, the investigating officer should have obtained a possession certificate for the house to link the appellant to the alleged recovery of a dead body. Still, nothing was brought to the record during the trial to establish a connection between the appellant and the alleged recovery. 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 a matter of routine that in all such cases, the initial onus of proof always lies upon the prosecution. 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). The 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. Reverting to that circumstantial evidence, it is well established that it must be so interconnected as to create a continuous chain linking the deceased to the accused. This chain must be sufficiently robust that one end points to the victim and the other to the accused, effectively excluding any hypotheses that could suggest the accused's innocence. The evidence must collectively form a coherent narrative that leaves no room for reasonable doubt regarding the accused's involvement in the crime. In this regard, I am fortified with the guidance of the Hon'ble Apex Court of Pakistan in the case of "Sarfraz Khan v. The State" reported in 1996 SCMR 188 whereby the Hon'ble Supreme Court of Pakistan observed as under:-

".....It is well settled that the circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby, excluding all hypothesis of his innocence...."

1. It is settled by now that in such cases when there is no direct evidence with the prosecution, it is bound to link each circumstance to the other so that it should form such a continuous chain of the circumstances firmly connecting the accused with the alleged offence. Without a solid chain of evidence linking the accused to the crime, the prosecution's case may be weak or insufficient to prove guilt. 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).

2. From the re-appraisal of the evidence, I have come to the conclusion that the trial Court failed to appreciate the evidence according to the settled principles of the law for the reasons that the prosecution case was based upon the testimony of police officials alone, which was also hearsay. It is necessary for this court to find out if there was any possibility of securing an independent person at that time. In the case of the prosecution, the complainant had acted upon spy information; in spite of that, he failed to associate or call private persons from the village to witness the proceedings. 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. The 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. For the purpose of conviction and sentence in a case of capital punishment, the evidence must be strong, and it should come through an unimpeachable source. The trial court has to see the intrinsic value of such evidence with strong corroboration, which is lacking in the present case.

2. It is settled law that it is not necessary that while giving the benefit of the doubt to an accused, it was not necessary that there should be many circumstances creating doubt in the prosecution case. If a single circumstance creates 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. In this regard, reliance is placed on the case reported as Muhammad Mansha v. The State (2018 SCMR 772).

3. Before concluding this judgment, it is important to note that the investigation in this case was fraught with defects, which effectively provided an easy avenue for the accused to evade justice. These investigative shortcomings undermine the integrity of her legal process and hinder the pursuit of truth. It is essential for law enforcement to adhere to rigorous investigative standards to ensure the collection of evidence through so that any potential culpability is appropriately addressed. The deficiencies in this investigation highlight the critical need for reform and greater oversight in handling cases of this nature to prevent future occurrences of similar injustices. In light of the above discussion, several proactive investigative steps can be taken to ensure that the real culprit does not evade justice. This way, the chances of apprehending the actual culprit can be significantly improved, thereby promoting justice and accountability within the legal framework.

(a) In the course of adjudicating the bail applications bearing numbers 501, 515, 516, 517, 518, 548, 554, 555 and 556 of 2024, this Court has noted several historical deficiencies in the investigations. The substantial gaps in the investigative process have been duly highlighted. The Inspector General of Police (I.G.P.), Sindh, has previously indicated that a proposal was made to appoint law graduates as Investigating Officers (I.O.s) within various police ranges in Sindh. Accordingly, the I.G.P., Sindh, is once again directed to take all necessary and expeditious measures to address these issues effectively.

(b) The Investigating Officer (I.O.) should ensure that the statements of key witnesses, including are recorded under Section 164, Cr.P.C. This formal recording can help preserve their testimony and reduce the likelihood of witness tampering or deviation during trial.

(c) Investigators should actively secure photographs or videos related to the place of the incident, as provided by Article 164 of Qanun-e-Shahadat Order, and the same should be sent to Forensic experts to assess its genuineness; such report should be incorporated into the investigation.

(d) The I.O should conduct a thorough inspection of the crime scene with the assistance of the Tapedar, who can collect and verify title documents related to the property where the incident occurred. In case the place of incidents is not registered under the name of the appellant, the investigating officer should have obtained a possession certificate for the place of incident to link the accused to the alleged recovery of a dead body.

(e) In light of the possibility that witnesses may turn hostile, it would be prudent to adopt protective measures aimed at safeguarding the witnesses' security, thereby fostering an environment where they are encouraged to testify truthfully, free from the fear of retaliation. The Witness Protection, Security and Benefit Act, 2017. This law was enacted to provide protection, security, and certain benefits to witnesses who are at risk due to their involvement in criminal proceedings. The aim of the Act is to ensure that witnesses, especially those in serious criminal cases such as terrorism, corruption, or organized crime, are able to testify without fear of retaliation, coercion, or harm.

(f) If a witness has given false statements or made deliberate misrepresentations in that case an application under section Section 193 application Cr.P.C can be moved in the trial court against a witness, but it is typically in specific contexts. The trial court should decided the application before pronouncement of the judgment so that anyone who intentionally gives false evidence in any judicial proceeding is liable to be punished for perjury.

(g) During the course of investigation, the prosecution should regularly review the investigation files to identify any discrepancies or weakness in the evidence. This should involve collaborative meetings between the prosecution and the I.O. to rectify any issue.

(h) In cases of non-cooperation from the I.O., the concerned District Public Prosecutor (DPP) or District Prosecution in charge should formally communicate with the Inspector General of Police (I.G.P.) to address the matter. Disciplinary actions should be pursued against non-compliant officers to uphold accountability.

2025 P Cr. L J 470

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Sahito, J

Qalandar and 2 others---Appellants

Versus

The State---Respondent

Criminal Appeal No. S-01 of 2024, decided on 6th May, 2024.

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

----Ss. 324, 506(ii), 337-A(i), 337-F(i), 337-F(iii), 114 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, criminal intimidation, abettor present at the time of occurrence, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for making firing upon the cousins of complainant, due to which they sustained firearm injuries, and accused allegedly left the place of occurrence while issuing murderous threats---Ocular account of the incident had been furnished by eye-witnesses/injured, who had received injuries at the hands of accused persons---Medical certificates of the injured persons produced by Medical Officer also proved that the injured were referred to him on the date of the incident; he examined them on the same date and found multiple injures of same kind of weapon---In the instant matter, the complainant, injured witness as well as all other eye-witnesses of the incident had fully explained the date, time, place of incident, manner of occurrence and involvement of the accused persons---From the perusal of the evidence of the injured/eye-witnesses and other private witnesses, it appeared that they could not be termed as chance witnesses rather would fall within the category of natural witnesses---From the appreciation of evidence, it was crystal clear that the prosecution remained successful in bringing cogent and unimpeachable direct evidence well supported and corroborated by the medical version against the accused persons---Evidence of the witnesses and injured witnesses could not be discarded merely because they were close relatives inter-se particularly their presence at the place of occurrence was obvious as the incident took place in broad daylight---Circumstances established that the prosecution had successfully established its case against two accused persons beyond shadow of doubt---Appeal against conviction of said two accused persons was dismissed, in circumstances.

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

----Ss. 324, 506(ii), 337-A(i), 337-F(i), 337-F(iii), 114 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, criminal intimidation, abettor present at the time of occurrence, common intention---Appreciation of evidence---Section 324, P.P.C., applicability of---Accused were charged for making firing upon the cousins of complainant, due to which they sustained firearm injuries, and accused allegedly left the place of occurrence while issuing murderous threats---In the present case, defence raised the plea that S.324, P.P.C. was not applicable as accused persons had not repeated fire upon the injured witnesses---However, once an accused person pressed the trigger of his firearm, S.324, P.P.C. comes in action---Section 324, P.P.C. consists of two parts i.e. commission of an act with intention or knowledge to commit qatl-i-amd, and in the second part, there is effect of the act done---Application of S.324, P.P.C. has to be judged in background of the number of the accused persons, the weapon carried by them and the opportunity available to them to complete the intended offence---In the present case, when both the injured were present at the bus stop and were waiting for the bus, the accused persons duly armed with gun appeared at the place of incident by saying that there was enmity between them and why they were standing here and, on the reply of the injured witnesses they made straight fire upon them and resultantly they received multiple pallets injuries on different part of the body---Hence ingredients of S. 324, P.P.C. were very much applicable in the present case---Circumstances established that the prosecution had successfully established its case against two accused persons beyond shadow of doubt---Appeal against conviction of said two accused persons was dismissed, in circumstances.

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

----Ss. 324, 506(ii), 337-A(i), 337-F(i), 337-F(iii), 114 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, criminal intimidation, abettor present at the time of occurrence, common intention---Appreciation of evidence---Delay of one day in lodging the FIR plausibly explained---Accused were charged for making firing upon the cousins of complainant, due to which they sustained firearm injuries, and accused allegedly left the place of occurrence while issuing murderous threats---Although, the FIR was lodged with a delay of one day but police letters and medical certificates showed that the injured persons appeared at police station and after getting a letter for medical treatment appeared at hospital and were examined on the same date of the incident within 05 hours---Complainant had explained that first the injured got treatment and then he lodged the FIR, therefore, the delay that occurred in the lodgment of the FIR is/was fully explained---Circumstances established that the prosecution had successfully established its case against two accused persons beyond shadow of doubt---Appeal against conviction of said two accused persons was dismissed, in circumstances.

(d) Criminal trial---

----Evidence---Corroboration---Scope---It is always the direct evidence which is material to decide a fact---Insufficient, contradictory, discrepant direct evidence is deemed adequate to hold a criminal charge as 'not proved', but where direct evidence remains in the field and it is 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 Ihsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 324, 506(ii), 337-A(i), 337-F(i), 337-F(iii), 114 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, criminal intimidation, abettor present at the time of occurrence, common intention---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Accused were charged for making firing upon the cousins of complainant, due to which they sustained firearm injuries, and accused allegedly left the place of occurrence while issuing murderous threats---Record showed that there were some minor contradictions and discrepancies in the evidence of witnesses, which were not adequate to hold that the case of the prosecution was doubtful---When the prosecution establishes its case beyond a reasonable doubt by producing reliable, trustworthy and confident inspiring evidence supported by medical and circumstantial evidence then if there are some minor contradictions, which are always available in each and every case, they may be ignored---Circumstances established that the prosecution had successfully established its case against two accused persons beyond shadow of doubt---Appeal against conviction of said two accused persons was dismissed, in circumstances.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 324, 506(ii), 337-A(i), 337-F(i), 337-F(iii), 114 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, criminal intimidation, abettor present at the time of occurrence, common intention---Appreciation of evidence---No connecting material available to connect accused with the offence---Accused were charged for making firing upon the cousins of complainant, due to which they sustained firearm injuries, and accused allegedly left the place of occurrence while issuing murderous threats---In the present case a third accused "Q" had also been involved---Record showed that only role assigned against accused "Q" by injured/eye-witnesses was that he had instigated both the accused persons and resultantly both the accused persons fired upon the injured---From perusal of evidence of both the injured witnesses, it appeared that he was armed with pistol but he did not cause any injury to the injured witnesses---Except role of instigation, no other connecting material had been brought on record by the Investigating Officer of the case to connect the accused "Q" with the commission of offence---Circumstances established that the prosecution had failed to prove its case against accused "Q" beyond shadow of doubt---Appeal against conviction of said accused "Q" was allowed by extending benefit of doubt, in circumstances.

(g) Criminal trial---

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

(h) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creates reasonable doubt in a prudent mind, then its benefit will be extended in favour of the accused not as a matter of grace or concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Rai Singh Sodho for Appellant No. 1.

Mir Ali Bux Talpur for Appellants Nos. 2 and 3.

Shahzado Saleem, Additional Prosecutor General Sindh for the State.

Zaheer-ud-Nohri for the Complainant.

Date of hearing: 29th April, 2024.

Judgment

Amjad Ali Sahito, J.----Through captioned Appeal, the appellant Qalandar, Zulfiqar alias Zulfiqar Ali and Rehman alias Abdul Rehman have challenged the Judgment dated 08.01.2024, passed by the learned Additional Sessions Judge-II, Tharparkar at Mithi in Sessions Case No.179 of 2023, Crime No.93/2023 registered at P.S Islamcot for the offence under sections 324, 506(ii), 337-A(i), 337- F(i), 337-F(iii), 114 and 34 P.P.C, whereby the appellants were convicted and sentenced as under:-

(i) Under Section 324 read with section 114 and 34 P.P.C.

All accused are sentenced to undergo R.I for seven years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) each and in case of failure of payment of fine, they shall further suffer S.I for three months more.

(ii) Under Section 337-F(iii) P.P.C..

Accused Zulfiquar alias Zulfiquar Ali son of Soomar is sentenced to undergo S.I for two years as Ta'zir and impose daman Rs.30,000/- (Rupees thirty thousand only) which accused is directed to pay to injured Hoat. In default of payment of Daman amount, accused shall be kept in jail for further three months S.I.

Accused Rehman alias Abdul Rehman son of Momin is sentenced to undergo S,I for two years as Ta'zir and impose daman Rs.30,000/- (Rupees thirty thousand only) which accused is directed to pay to injured Kanbeer. In default of payment of Daman amount, accused shall be kept in jail for further three months S.I.

(iii) Under Section 506(ii) P.P.C.

All accused are sentenced to undergo S.I for three years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) each and in case of failure of payment of fine, they shall further suffer S.I for three months more.

1. Brief facts of the prosecution case are that complainant Razique son of Chhutto stated that that they have dispute over the landed property with Qalandar and others. On 02-08-2023 at 0700 hours, his cousins Hoat and Kanbeer, were standing at bus stop road and waiting for the bus and in the meantime, accused namely Qalandar armed with pistol, Zulfiquar and Rehman armed with gun came at bus stop and asked the complainant's cousins as to why they were standing at bus stop despite dispute with them. They replied that they are waiting for the bus and going to Islamkot town. Accused Qalandar shown his pistol and 'instigated co-accused not to spare them and on such instigation, accused Zulfiquar alias Zulfiqar made straight fires from his gun upon injured PW Hoat, with intention to commit his qatl-i-amd and he sustained injuries on his left thigh, left leg, left knee and right side foot; and accused Rehman made straight fires from his gun upon injured PW Kanbeer, with intention to commit his qatl-i-amd and he sustained injuries on his left knee, left leg, left foot, beside right side knee and right side foot. They fallen on earth while crying, which attracted Arab and Halo, who rushed there, intervened and rescued injured. Thereafter, accused left the place of incident while issuing murderous threats. Halo arranged vehicle and brought injured at PS Islamkot, obtained letter for treatment and then got admitted at RHC, Islamkot. Thereafter, instant FIR was lodged.

2. On conclusion of investigation, a challan was submitted by the Investigating Officer against the appellants and thereafter a formal charge was framed against them by the trail court, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 07 witnesses, viz complainant Razique, mashir Halo, injured Hoat, injured Kanbeer, WHC Miandad, I.O/ASI Mohan Lal and Dr. Kanwar Lal and produced number of items in their evidence which were duly exhibited at Ex. 03/A to Ex. 10.

3. The Statements of the accused were recorded under Section 342, Cr.P.C at Exh.11 to Exh.13 respectively, wherein they have denied the prosecution allegations levelled against them and lastly prayed for justice. However, none of them examined themselves on Oath nor examined any witness in their defense.

4. The learned Trial Court, after hearing learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellants/accused as stated above by extending them the benefit of section 382-B, Cr.P.C. The conviction and sentence recorded by the learned trial Court are impugned by the appellants before this Court by way of filing instant Criminal Appeal.

5. Learned counsel for the appellants mainly contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and has falsely been implicated in this case by the complainant; that the complainant and eye-witnesses are related inter-se and inimical towards the appellant; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case. That Section 324, P.P.C. is not applicable in this case, as accused person have not repeated the fire upon the complainant party; that the conviction so recorded by the learned trial court under section 324, P.P.C. is against the law. Learned counsel for appellant Qalander argued that no role has been assigned against the accused Qalandar Bux and merely on the instigation he has been robed in this case due to enmity which was admitted by the complainant. They lastly contended that the prosecution has miserably failed to prove the case against the appellants and thus, according to them, under the above-mentioned facts and circumstances, the appellants are entitled for their acquittal.

6. On the other hand, learned Additional Prosecutor General for State and learned counsel for the complainant argued that there was no mala fide on the part of the complainant to implicate the appellants in this case falsely; that the appellants named in the FIR with the specific role of making direct fires of the pistol/gun up on the injured/witnesses with the intention to kill them; that the ocular testimony furnished by complainant Razique and injured Hoat and Kanbeer is corroborated with medical evidence. They further argued that the learned trial Court has rightly appreciated the evidence while recording the conviction and sentence of the appellants in accordance with the law, thus they lastly prayed for dismissal of the instant Crl. Appeal.

7. I have heard learned counsel for the parties and perused the material available on record.

8. From perusal of record it appears that Hoat and Kanbeer are eye/injured witnesses of the incident, who had received the injuries at the hand of appellants namely Zulfiquar and Rehman. Both the witnesses with one voice deposed that on 02.08.2023 at about 07:00 a.m they were present at bus stop and waiting for Bus/vehicle. Meanwhile Appellant Qalandar having pistol, Zulfiquar having gun and Rehman having gun appeared there and asked the both the witnesses why they are here and we are at disputed. Both the witnesses replied that they are going to lslamkot and waiting for bus. On the instigation of appellant Qalandar, the appellant Zulfiquar made straight fire from his gun up on Hoat with intention to kill him, resultantly he received Multiple pallets injures on the different part of the bodies. Things are not ended here appellant Rehman also fired from his gun up on the PW Kanbeer and he had also received multiple pallets injuries in the different part of the bodies. This incident was witnessed by the PW Arab and Halo. PW Halo is also mashir of this case. The prosecution also examined him and he had also supported the version of the injured witnesses. He had produced memo of injures of the injured witnesses, memo of site inspection and memo of recovery of clothes at Ex. 4/A to Ex.4/C. The prosecution also examined the complainant and other witnesses including I.O. and other police officials. They have also supported the version of the injured witnesses.

9. The medical certificate of the injured Hoat and Kanbeer was produced by PW Dr. Kanwar Lal/PW-07 (Ex.No.09) also proves that the injured were referred to him on the date of the incident he examined them on the same date and found multiple injuries of same kind of weapon. Dr. Kanwar Lal further deposed that he was posted at RHC Islamkot and on the day of offence viz: 02.08.2023, two injured namely Hoat and Kanbeer, appeared at RHC Islamkot along with police letter. He produced the letter at Ex.9/A. He examined the injured Hoat and found multiple injuries of same kind as 1 lacerated wound of firearm multiple in numbers each measuring about 2 mm to 3 mm in size largest of 3 mm over (a) medial and anterior side of left thigh (b) anterior and lateral side of left leg (c) anterior aspect of left knee joint (d) right foot anterior, dorsal and medial aspect. He was given first aid, kind of weapon firearm/shot gun and duration of injuries six to eight hours. He has also issued provisional MLC and produced at Ex.9/C and he referred the patient to DHQ Mithi and he has produced referral letter at Ex.9/D. Finally, he has received file/record along with x-ray from DHQ Mithi and LUH Hyderabad and produced the same at Ex.9/E. He has also produced final MLC at Ex.9/H.

10. He/Doctor also examined injured Kanbeer and found multiple injuries of same kind as: 1. lacerated wound of firearm multiple in numbers each measuring about 2 mm to 3 mm in size largest of 3 mm over (a) anterior aspect of left knee joint (b) lateral and anterior aspect of left leg (c) lateral side of left ankle (d) anterior and medial aspect of right ankle (e) anterior and medial aspect of right foot. All the injuries kept reserved and during of injuries four to six hours. He also issued provisional MLC and produced the same at Ex.9/J and he referred the patient to DHQ Mithi and finally he has produced file/record received from DHQ Mithi and LUH Hyderabad at Ex.9/L. He has also produced final MLC at Ex.9/O. During cross-examination, the Doctor denied the allegation for self-suffer injuries, however admitted that the injuries were caused at the distance of around 10 Meter. All the witnesses were cross-examined at length but the appellants could not shatter the evidence of the prosecution witnesses.

11. So far the plea raised by the counsel for the appellants that ection 324, P.P.C. is not applicable in this case as accused persons not repeated fire upon the injured witnesses. It is suffice to say that the once an accused person pressed the trigger of his fire arm, Section 324, P.P.C. comes in action. Section 324, P.P.C. consisted of two parts i.e., commission of an act with intention or knowledge to commit Qatl-i-amd, and in the second part, there is effect of the act done. Application of Section 324 P.P.C. has to be judge in background of the number of the accused persons, the weapon carried by them and the opportunity available to them to complete the intended offence. In the instant case, when both the injured present at the bus stop and waiting for the bus, the appellants duly armed with gun appeared at the place of incident by saying that there is enmity between them and why they are standing here and, on the reply of the injured witnesses they made straight fire upon them and resultantly they received multiple pallets injuries on the different part of the body., hence ingredients of section 324, P.P.C. are very much applicable in this case.

12. Although, the FIR was lodged with a delay of one day but police letters and medical certificates show that the injured appeared at PS and after getting a letter for medical treatment appeared at Hospital and were examined on the same date of the incident within 05 hours. The complainant has explained that first the injured got treatment and then he lodged the FIR; therefore, the delay that occurred in the lodgment of the FIR is/was fully explained. The prosecution has successfully proved allegations against accused/appellant Zulfiquar for causing firearm injuries to PW/injured Hoat. So also against appellant/accused Rehman who had caused fire arm injuries to PW/injured Kanbeer.

13. In the instant matter, the complainant, injured witness as well as all other eye-witnesses of the incident has fully explained the date, time, place of incident, manner of occurrence, and involvement of the appellants. There can be no denial to the legally established principle of law that it is always direct evidence that is material to decide the fact and to prove the charge. Insufficient, contradictory, discrepant direct evidence is deemed adequate to hold a criminal charge as not proved but where direct evidence remains in the field with that of its 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. Reliance may be placed upon the case of Muhammad Ihsan v. The State (2006 SCMR 1857) wherein the Apex Court has held that:

"5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence."

1. From the perusal of the evidence of the injured/ eye-witnesses and other private witnesses, it appears that they cannot be termed as chance witnesses rather would fall within the category of natural witnesses. From the appreciation of evidence, it is crystal clear that the prosecution remained successful to bring cogent and unimpeachable direct evidence well supported and corroborated by the medical version against the appellants Zulfiquar and Rehman. The evidence of the witnesses and injured witnesses cannot be discarded merely because they are close relatives inter-se particularly their presence at the place of occurrence was obvious as the incident took place in broad daylight.

2. Learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence of witnesses, which in my observation are not adequate to grip that the case of the prosecution is doubtful. It is settled by now that, wherein the evidence, the prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confident inspiring evidence supported by the medical and circumstantial evidence then if there may some minor contradictions which always are available in each and every case, such may be ignored, as it has been held by Honourable Supreme Court in case of Zakir Khan v. The State (1995 SCMR 1793). The relevant paragraph is reproduced as under:-

"13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."

1. Considering the above facts and circumstances, I have concluded that the prosecution has successfully established its case against. appellant Zulfiquar alias Zulfiqar Ali and Rehman alias Abdul Rehman, through ocular account furnished by the complainant and eye-witnesses/injured witnesses which is corroborated by the medical evidence coupled with circumstantial evidence. Learned counsel for the appellants has failed to point out any material irregularly or serious infirmity committed by the learned trial Court while passing the impugned judgment to the extent of appellants Zulfiqar and Rehman which in my humble view is based upon proper appreciation of evidence and the same does not call for any interference of this Court. Thus, the Criminal Appeal No.S-01 of 2024 is dismissed to the extent of appellants Zulfiqar and Rehman and the conviction and sentence awarded to appellants/ accused named above through impugned Judgment dated 08.01.2024 passed by learned Additional Sessions Judge-II, Tharparkar alias Mithi in Sessions Case No.179/2023 State v. Qalandar and others for the offence under Sections 324, 506(ii), 337-A(i) 337-F(i)-,337-F(iii),114, and 34 P.P.C., Crime No. 93/2023 of Police Station Islamkot are maintained.

2025 P Cr. L J 517

[Sindh]

Before Adnan-ul-Karim Memon, J

Ayazullah---Appellant

Versus

The State---Respondent

Criminal Bail Application No. 1304 of 2024, decided on 11th July, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 397, 398, 411 & 34---Robbery or dacoity with attempt to cause death or grievous hurt, attempt to commit robbery or dacoity when armed with deadly weapons, dishonestly receiving stolen property and common intention---Post-arrest bail, grant of---Prosecution had only bothered to invoke S.397, P.P.C. without corresponding offence, which attracted minimum sentence---Name of the petitioner had not been mentioned in the FIR---Prima facie there lacked material that the recovery of the Suzuki vehicle was made from the petitioner as the complainant had narrated a different story by not disclosing the number plate of Suzuki as to how the lnvestigating Officer came to know that this was the same Suzuki which was used in the alleged crime---Petitioner was not arrested on the spot but somewhere else after a couple of days and after his arrest no identification parade was conducted through the complainant to the effect that petitioner was the main accused who was along with the other accused who were killed on the day of the alleged incident---Mere pendency of criminal case against an accused did not ipso facto disentitle him for grant of bail---Petitioner was not a previous convict nor a hardened criminal as no record had been produced to that effect---Petitioner had been in continuous custody since his arrest and was no longer required for any investigation that could justify keeping him behind the bars for an indefinite period pending determination of his guilt---Where a case falls within the non-prohibitory clause the concession of the grant of bail must favorably be considered and should only be declined in exceptional cases---Bail application was allowed and petitioner was admitted to post arrest bail, in circumstances.

Farman Ali v. The State 1997 SCMR 971; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.411 & 34---Dishonestly receiving stolen property and common intention---Bail---Essential elements of offence---Onus to prove---Primarily a person, immediately, after theft found to be in possession of the stolen property, the presumption would be that either he was a thief or in possession of goods with knowledge that those were stolen, however, mere possession of the stolen property was not sufficient to constitute an offense under S.411, P.P.C., rather it had to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having reasons to believe the same to be stolen---Onus is always on the prosecution to prove the essential elements of the offence and in case of failure by the prosecution to prove the basic ingredients i.e. receipt or retention of property belonging to someone else, the property being stolen, the existence of knowledge or belief on the part of the person found in possession, and the receipt and retention as dishonest, no bail can be refused in such circumstances and no conviction can be awarded on such analogy.

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

----S. 497---Bail---Pendency of criminal case against the accused---Effect---Mere pendency of criminal case against an accused does not ipso facto disentitle him for grant of bail.

Tarique and others v. The State 2018 MLD 745 rel.

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

----S. 497---Bail---Minimum aspect of the sentence---Duty of Court---While examining the question of bail, the court has to consider the minimum aspect of the sentence provided for the alleged offence.

Jehan Zaib for the Applicant.

Ms. Rubina Qadir, Deputy PG along with IO/PI Mir Muhammad Lashari, SIU Saeedabad Karachi.

Complainant Mehrab Khan is present in person.

Date of hearing: 11th July, 2024.

Order

Adnan-ul-Karim Memon, J.---Through this bail application under Section 497, Cr.P.C., the applicant Ayazullah has sought admission to post-arrest bail in FIR No. 260/2023, registered under Sections 397/398/511/34, P.P.C., lodged at Police Station Docks Karachi. The earlier bail plea of the applicant has been declined by the learned Additional and Sessions Judge XI West Karachi vide order dated 05.04.2024 in Criminal Bail Application No. Nil/2023/Sessions Case No. 2041/2023 on the premise that he was arrested along with Suzki which was used in the crime where two accused were killed at the hands of the complainant, during committing robbery, besides the applicant has a criminal history.

1. Learned counsel for the applicant/accused has argued that there is no ground to believe that the applicant/accused has committed any offense with which he stands charged otherwise the story narrated in the FIR is concocted and fabricated thus the case requires further inquiry. He has further argued that the applicant has not previously been convicted of any offense; that no identification test of the applicant was held before the Illaqa Magistrate to call the complainant and other witnesses to identify the applicant before the Illaqa Magistrate and the complainant did not identify the present applicant, therefore, he may be admitted to post-arrest bail in the aforesaid crime.

2. Learned APG has opposed the bail plea of the applicant on the ground that FIR was lodged without delay; that specific role has been assigned to the applicant as he drove away the Suzuki with the injured accused who passed away and the vehicle used in the crime was recovered with bullet marks; no enmity has been shown to the police; that sufficient material is available against the applicant to connect him with the crime; that police officials are good witnesses like others; that Section 397, P.P.C. caries punishment for up to 07 years; that the crime is against the society. He added that the applicant has been involved in similar kinds of cases in the past. He prayed for the dismissal of his bail application.

3. I have heard learned counsel for the parties and have perused the material available on record.

4. I am cognizant of the fact that, while deciding a Bail Application, only allegations made in the FIR, statements recorded under Section 161, Cr.P.C. nature and gravity of the charge, other incriminating material against the accused, legal pleas raised by the accused and relevant law have to be considered, however, the applicant is charged with an offense punishable under Section 397, P.P.C., which carries imprisonment of up to seven years. The point, that requires consideration at the bail stage, is that as to whether there is material in the case is sufficient to refuse bail to the applicant under Section 397/34, P.P.C. It shall be advantageous to reproduce Section 397, P.P.C. herein below:-

"397. Robbery or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

1. The prosecution has applied in FIR Section 397, P.P.C. Whereas Section 392, P.P.C. pertains to an attempt to commit robbery which is punishable with R/I for a term that shall be extended up to seven years, whereas Section 397, P.P.C. provides the punishment for an attempt to commit robbery or dacoity when armed with deadly weapons for which the accused shall be punished not less than seven years, however, the prosecution was only bother to invoke Section 397, P.P.C. without corresponding offense. It is well settled that while examining the question of bail, the Court has to consider the minimum aspect of the sentence provided for the alleged offense. It is also the case of the prosecution that the applicant was not arrested on the spot but somewhere else after a couple of days and after his arrest, holding of test identification parade was necessary in terms of the judgment of the Supreme Court in the case of Farman Ali v. The State [1997 SCMR 971], which factum is missing in the present case, the reasons best known to the investigation officer, who allegedly narrated that applicant disclosed his identity when he was interrogated at the time of his arrest from Shershah, if this is the stance of the investigating officer let this aspect be taken care of by the trial Court after examining him. Admittedly, the name of the Applicant is not mentioned in the FIR. Prima facie there lacks material that the recovery of the Suzuki was made from the Applicant as the complainant has narrated a different story by not disclosing the Number plate of Suzuki as to how the investigating officer came to know that this was the same Suzuki which was used in the alladged crime, and even no identification was conducted through the complainant to the effect that he was his accused who was along with other accused who were killed by him on the day of the alleged incident. Besides the alleged offense occurred on 28.5.2024 whereas the the applicant has been shown to have been arrested after the date of the offense, which prima facie shows something fishy on the part of the police.

2. In similar circumstances, the Supreme Court of Pakistan in the case of Qamar alias Mitho v. The State and others (PLD 2012 SC 222), has granted bail. Moreover, the applicant/accused has been in continuous custody since his arrest and is no longer required for any investigation nor the prosecution has claimed any exceptional circumstance, that could justify keeping him behind bars for an indefinite period pending determination of his guilt. It is well-settled law that while examining the question of bail, the Court has to consider the minimum aspect of the sentence provided for the alleged offense. This case does not fall within the prohibitory clause thus keeping in view the law laid down in the case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488) ordaining that where a case falls within the non-prohibitory clause the concession of the grant of bail must favorably be considered and should only be declined in exceptional cases. In the instant case, no exception has been pointed out by the prosecution, especially in the circumstances.

3. Further the prosecution has applied Section 411, P.P.C., in the above circumstances, it is expedient to reproduce Section 411 P.P.C.

"Section 411.

Dishonestly receiving stolen property. Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either disruption for term which may extend to three years or with fine or with both."

1. A bare perusal of the aforementioned provisions of law demonstrates that the same is applicable in the class of persons, who trade in such stolen articles known as receivers as the complainant has failed to recognize the applicant. Primarily, a person, immediately, after theft found to be in possession of the stolen property, the presumption would be that either he is a thief or in possession of goods with knowledge that those are stolen. Mere possession of the stolen property is not sufficient to constitute an offense under the aforementioned provisions rather in addition it has to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having the reasons to believe the same to be stolen. The onus is always on the part of the prosecution to prove the essential elements of the offense. In case of failure on the part of the prosecution to prove the basic ingredients i.e. receipt or retention of property belonging to someone else, the property being stolen, the existence of knowledge or belief on the part of the person found in possession, and the receipt and retention as dishonest, no bail can be refused as in such circumstances it is well settled that no conviction can be awarded on such analogy. The prosecution to establish an offense under the aforesaid section, must not only prove that the property is stolen, but it must also be established that the person charged with having stolen property either knows the property to be stolen or has reasonable grounds for believing the same to be stolen.

2025 P Cr. L J 526

[Sindh]

Before Omar Sial, J

Samiullah---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 2264 of 2023, decided on 22nd December, 2023.

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

----Ss. 497 & 156---Prevention of Electronic Crimes Act ( XL of 2016 ), Ss. 9, 10 & 11---Penal Code (XLV of 1860), Ss. 295-A, 295-B, 295-C, 298-A & 109---Blasphemous contents on social media forums---Bail, grant of---Investigation not conducted by prescribed officer---Effect---Complainant wrote a letter to the F.I.A. stating that he became aware that a Facebook page promotes blasphemous content through a WhatsApp group ; he first joined the Facebook page with a pseudo-name and then joined the WhatsApp group---Section 156-A, of the Criminal Procedure Code, 1898, (Cr.P.C) requires that no police officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under S.295-C of the Penal Code, 1860---In the present case, the investigation was done by an inspector, although it seems that a deputy director may have been involved in the investigation later---Entire inquiry and investigation was done by an inspector---A deputy director was asked to investigate after realizing that the law had been breached---The "investigation" by the deputy director was restricted to re-recording what the F.I.A. personnel had told the inspector earlier---There was a reason why the Cr.P.C stipulated that for offences under S.295-C, P.P.C., a senior officer must conduct the investigation---Legislature realized the importance of the offence and its potential to arouse emotions---A senior officer is expected to look at the case more wholly, professionally and with greater wisdom---In the present case, the deputy director rubber-stamped everything the inspector had done---The entire investigation was conducted stereo-typically and mechanically without an element of professionalism---The stipulation in law might have been followed in word but certainly not in spirit---The F.I.A. took an extremely casual approach without realizing the issue's sensitivity and gravity---Applicant was admitted to post-arrest bail, in circumstances.

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

----Ss. 497 & 196---Prevention of Electronic Crimes Act ( XL of 2016 ), Ss. 9, 10 & 11---Penal Code ( XLV of 1860 ), Ss. 295-A, 295-B, 295-C, 298-A & 109---Blasphemous contents on social media forums---Bail, grant of---Complaint under the law, non-filing of---Effect---Section 196 of the Cr.P.C provides that no Court shall take cognizance of certain offences, which includes S.295-A, P.P.C., unless upon complaint made by order of, or under authority from, the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments---In the present case, no complaint has been made by order of or under authority from either government---Realizing the issue's sensitivity, said safeguard was built into the law, on which ground applicant /accused made case for his concession to bail---Applicant was admitted to post-arrest bail, in circumstances.

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

----S. 497(2)---Prevention of Electronic Crimes Act (XL of 2016), Ss. 9, 10 & 11---Penal Code ( XLV of 1860 ), Ss. 295-A, 295-B, 295-C, 298-A & 109---Blaspheme content as social media forums---Bail, grant of---Collecting evidence, deficiency in---Further inquiry---Record revealed that no record from the cellular service provider had yet been obtained to confirm that the applicant was the person in whose name the company issued the SIM---While the F.I.A. claimed that the phone with the SIM was recovered from the applicant's possession, a bare look at the memo of arrest and recovery showed that they left much to be desired---F.I.A.'s casual approach was apparent---The seizure had been made during an inquiry---Record was vague on how the applicant was apprehended and then arrested---The only seizure witness who had recorded a S.161, Cr.P.C. statement did not identify the person from whom recovery was made---The seizure memo, the statements of the witnesses to the seizure, nor any other document showed that the phone allegedly recovered from the applicant was sealed on the spot---On the contrary, from the seizure onwards, it seemed that the phone had been changing hands freely---Whatever little evidence was on file regarding forensic analysis also did not reveal that the laboratory received the phone in a sealed condition---No call data record of the applicant had been obtained to corroborate dissemination---As a matter of prudence, a person with information about an offence committed should report it to law enforcement agencies rather than proceed to conduct a sting operation on their own, pretending to be a woman, as was the position in the present case---No one stopped the F.I.A. from proceeding against any offence, but its choices could not be selective---No investigation had been done regarding the WhatsApp group and the Facebook page from where the issue arose---How the evidence was collected did not permit suspending the applicant's fundamental rights and made his case one of further inquiry---Looking at the gravity of this case (apart from blasphemy, there were other aspects of extreme concern), as an exception, it would be appropriate to direct the F.I.A. to expand its investigation, seek the requisite approvals required by law and use its best efforts to bring a watertight case to court---Applicant was admitted to post-arrest bail, in circumstances.

Deedam Gul Phulpoto for Applicant.

Altaf Ahmed Sahar, Assistant Attorney General along with Aijaz Ali Kalwar, Assistant Director (Legal), FIA and P.I. Wazir Ahmed Bhutto for the State.

Sardar Abdul Hameed for the Complainant.

Order

Omar Sial, J.---On 16.01.2023, Hafiz Ehtesham Ahmed wrote a letter to the F.I.A. stating that he became aware that a Facebook page promotes blasphemous content through a WhatsApp group. Hafiz first joined the Facebook page with a pseudo-name and then joined the WhatsApp group. His motive to join the page and group as a member was allegedly noble. According to him, he aimed to catch hold of people engaged in blasphemy. On the WhatsApp group, he conversed with an anonymous person, who subsequently-forwarded him blasphemous content on his phone.

1. Upon the complaint made by Hafiz Ehtesham, FIR No. 4 of 2023 was registered under sections 9, 10 and 11 of the Prevention of Corruption Act, 2016 and sections 295-A, 295-B, 295-C, 298-A and 109 P.P.C. at the F.I.A.'s Cyber Crime Unit.

2. I have heard the learned counsel and the learned Assistant Attorney General.

3. Section 156-A of the Criminal Procedure Code requires that no police officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under section 295-C of the Pakistan Penal Code, 1860 (Act XLV of 1860). In this case, the investigation was done by an inspector, although it seems that a deputy director may have been involved in the investigation later. Be that as it may, the entire inquiry and investigation was done by an inspector. A deputy director was asked to investigate after realising that a law had been breached. The "investigation", if one can even term it as such, by the deputy director was restricted to re-recording what the F.I.A. personnel had told the inspector earlier. There was a reason why the Code stipulated that for offences under section 295-C, P.P.C., a senior officer must conduct the investigation. The legislature realised the importance of the offence and its potential to arouse emotions. A senior officer is expected to look at the case more wholly, professionally and with greater wisdom. In the present case, the deputy director rubber-stamped everything the inspector had done. The entire investigation was conducted stereo-typically and mechanically without an element of professionalism. The stipulation in law might have been followed in word but certainly not in spirit. The F.I.A. took an extremely casual approach without realising the issue's sensitivity and gravity. At this stage, however, in my opinion, whether or not a duly-empowered officer conducted the investigation will be equivalent to a deeper analysis of evidence. However, section 196 of the Code provides that no Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Pakistan Penal Code (XLV of 1860) (except section 127) or punishable under section 108A or section 153A or section 294-A, or section 295A or section 505 of the same Code, unless upon complaint made by order of, or under authority from, the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. In the present case, no complaint has been made by order of or under authority from either government. Once again, it was realizing the issue's sensitivity that this safeguard was built into the law.

4. In this case, no record from the cellular service provider, Telenor, has yet been obtained to confirm that the applicant is the person in whose name the company issued the SIM. While the F.I.A. claims that the phone with the SIM was recovered from the applicant's possession, a bare look at the memo of arrest and recovery shows that they leave much to be desired. F.I.A.'s casual approach is apparent. The seizure has been made during an inquiry. The record is vague on how the applicant was apprehended and then arrested. The only seizure witness who has recorded a section 161, Cr.P.C. statement does not identify the person from whom recovery was made. The seizure memo, the statements of the witnesses to the seizure, nor any other document show that the phone allegedly recovered from the applicant was sealed on the spot on 19.01.2023. On the contrary, from the seizure onwards, it seems that the phone has been changing hands freely. Whatever little evidence is on file regarding forensic analysis also does not reveal that the laboratory received the phone in a sealed condition. No call data record of the applicant has been obtained to corroborate dissemination. As a matter of prudence, a person with information about an offence committed should report it to law enforcement agencies rather than proceed to conduct a sting operation on their own, pretending to be a woman, as was the position in this case.

2025 P Cr. L J 548

[Sindh]

Before Aqeel Ahmed Abbasi, CJ

The State through Addl. Attorney General for Pakistan---Applicant

Versus

Zafar Khan alias Ram alias and 13 others---Respondents

Cr. Transfer Application No. 140 of 2022, decided on 22nd January, 2024.

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

----S.28(1A)---Transfer of case---Scope---Complainant sought transfer of case from one province to another province on the ground of being a highly sensitive case---Jurisdiction of a Court has to be jealously safeguarded and cannot be ousted, or transfer of a case from the competent Court of jurisdiction cannot be sought on flimsy grounds at the pleasure or sweet will either of the accused or of the prosecutor to the disadvantages and inconvenience of either party---Unless any party seeking transfer of the case from one Anti-Terrorism Court to another can make out a case to establish that it is expedient and in the interest of justice, or where the convenience or safety of the witnesses or the safety of the accused so requires, transfer of any case from one Anti-Terrorism Court to another cannot be allowed---Similarly, if such request is made by the Government, unless it is established that such transfer will be in the interest of justice or expedient for protection and safety of the judges, witnesses or the prosecutors, it cannot be acceded to by the Chief Justice of the High Court concerned---In the instant case, none of the said eventuality was attracted, as no material whatsoever had been placed on record to justify the allegation of any security threat, harassment or inconvenience to the accused, witnesses or the Judge of the Anti-Terrorism Courtat "K", whereas, the transfer was being sought on mere allegation of security threat to the prosecutor(s) appointed by the Ministry of Law and Justice Division, through Ministry of Interior, however, without any material to support such allegations---Thus, it appeared that the appointment of prosecutor(s) based at "I" perhaps resulted in inconvenience to such prosecutor(s), who were required to travel to "K" on each date of hearings during pendency of the case before the Anti-Terrorism Court at "K"---In view of said facts and circumstances of the case, attractions none of the ingredients of S.28 of Anti-Terrorism Act, 1997 as per record of the case, transfer application, besides being misconceived, appeared to have been filed to delay the conclusion of trial, whereas, transferring the case at such stage would cause serious injury and inconvenience to the accused persons and the witnesses on the one hand, and would also involve serious financial implications, if all the accused persons, their lawyers and the witnesses were to appear before the Anti-Terrorism Court at "I", till finalization of the case, which would amount to denying the fair trial and justice to the accused persons---Transfer application was dismissed accordingly.

Khaleeq Ahmed, Deputy Attorney General for Applicant.

Shabbir Hussain Shigri, Deputy Director (Legal) CTW, FIA along with Bharat Kumar, I.O./Assistant Director CTW, FIA, Karachi.

Muhammad Irfan for Respondents Nos. 4 and 9.

S.M. Nehal Hashmi for Respondent No. 9.

Hassan Sabir for Respondents Nos. 10 and 12.

Order

Aqeel Ahmed Abbasi, C.J.--- Instant Crl. Transfer Application was filed on 13.12.2022 by the State through Additional Attorney General for Pakistan Sindh at Karachi under Section 28(1A) of the Anti-Terrorism Act, 1997, seeking transfer of a Special Case No.135/2020 emanating from FIR No.02/2020 for the offences under Sections 11-H, 11-I, 11-J, 11-K, 11-N, 21-C(7), 21-I of Anti-Terrorism Act, 1997 read with Sections 4/5/23 of FERA, 2020 from Anti-Terrorism Court No.XII at Karachi to Anti-Terrorism Court, Islamabad.

1. The applicant of instant Crl. Transfer Application is the Investigating Officer of the FIR No.02/2020 registered at Police Station CTW, Karachi, namely, Ghulam Abbas son of Ghulam Haider on behalf of the FIA, wherein, it has been stated that Ministry of Interior, Government of Pakistan conveyed to FIA that Cabinet Division approval of the Cabinet has been sought and cabinet has approved the following proposals as under: -

"Approval of the cabinet is therefore solicited to transfer the case, subject to concurrence of the Hon'ble Chief Justice, Sindh High Court under Section 28(1)(A) of Anti-Terrorism Act, 1997, as he is competent to decide the issue of jurisdiction. After approval of the cabinet, matter shall be replaced before the Hon'ble Chief Justice, Sindh High Court, Karachi through Law and Justice Division, for appropriate orders."

1. Thereafter, the brief facts of the case have been narrated, including formation of Joint Investigation Team on 25.03.2020, the registration of an Enquiry No.71/2020 made on 21.04.2020 in Commercial Banking Circle, Karachi on the report of FIA, whereafter, on 22.04.2020 such enquiry was transferred and converted into Enquiry No.13/2020 at FIA, CTW, Karachi for further investigation and pursuant to such enquiry proceedings, on 29.04.2020 an FIR No.02/2020 under sections 11-H, 11-I, 11-J, 11-K, 11-N, 21-C(7) and 21-1 of Anti-Terrorism Act, 1997 read with Sections 4/5/23 of FERA, 2020 was registered against six accused persons on the allegation of affiliation with MQM-London allegedly involved in anti-State and terrorist financing activities at Police Station CTW, FIA Headquarters, Islamabad. After completion of investigation, the Investigating Officer submitted report under section 173, Cr.P.C. before the trial Court, where, out of 14 accused persons nominated in the aforesaid FIR, nine (9) accused persons are presently confined at Central Prison Karachi, four (4) accused persons are on bail, and one accused has been shown as absconder. However, the trial is proceeding before the Anti-Terrorism Court No.XII at Karachi situated at Judicial Complex, Central Prison Karachi. The reasons for transfer of trial from Anti-Terrorism Court No.XII at Karachi to Anti-Terrorism Court, Islamabad, as stated in instant Crl. Transfer Application, are that due to highly sensitive case FIA requested the Ministry of Interior to appoint Senior Law Officer to assist the Anti-Terrorism Court, Karachi, thereupon, the Ministry of Law and Justice Division appointed two different DAGs at different times, who resigned due to life threat, whereafter, the Ministry of Law and Justice Division appointed another AAG for prosecution of the case, however, he also recused to proceed with the case due to security threat. Subsequently, Mr. Shabbir Hussain Shigri, Deputy Director (Law) was appointed as Special Public Prosecutor to avoid delay in trial and since his appointment he is regularly appearing before the Anti-Terrorism Court No.XII at Karachi, however, he has also filed an application before Anti-Terrorism Court for provision of necessary security under section 21 of the Anti-Terrorism Act, 1997. Under the aforestated circumstances, instant Crl. Transfer Application was filed before this Court on 13.12.2022, however, the case diary shows that the applicant did not take any efforts to pursue the case and still Crl. Transfer Application remains pending since its filing without any useful progress.

2. During the course of pendency of instant Crl. Transfer Application, notices were issued to the respondents, whereas, reports were called from the Superintendent, Central Prison Karachi as well as progress report from the concerned Anti-Terrorism Court, however, nothing adverse with regard to the conduct of the accused persons or any incident of issuing threats either to the witnesses or the Prosecutor has been intimated, nor any such complaint or request in writing has been received to this effect.

3. Conversely, learned counsel appearing for the respondents have vehemently denied the allegations, as alleged in the instant Crl.Transfer Application and have opposed the transfer of the case from Anti-Terrorism Court No.XII at Karachi to Anti-Terrorism Court, Islamabad, as according to learned counsel, no valid grounds whatsoever have been mentioned in the instant Crl. Transfer Application, requiring this Court to exercise its discretion as vested under Section 28 of Anti-Terrorism Act, 1997, nor any material whatsoever has been placed on record, which could possibly support the allegation of security threats at the end of accused persons, either to the witnesses, the prosecutor, or the Hon'ble Judge of the ATC Court No.XII at Karachi. It has been further argued by the learned counsel for the respondents that the entire case is based on surmises, whereas, the accused persons have been falsely involved in the aforesaid crime due to political victimization to the workers of a political party. According to learned counsel for the respondents, the prosecution is causing delay in concluding the trial, whereas, instant Crl. Transfer Application has been filed to cause delay in disposal of the case on merits, wherein, the evidence has been recorded and the matter can be concluded if the prosecution shall pursue the case and conclude recording of evidence of the prosecution witnesses. It has been further contended by the learned counsel for respondents that serious injury and inconvenience will be caused to the accused persons as well as to the witnesses and defense lawyers, if the trial is transferred from Anti-Terrorism Court No.XII at Karachi to Anti-Terrorism Court, Islamabad at this stage of the proceedings, whereas, it will also have huge financial implications as well, keeping in view the long distance, cost of air tickets, boarding and lodging on each date of hearing. Per learned counsel, the prosecution intends to drag the accused persons in a false and frivolous case, whereas, engaging a counsel from Islamabad, just to create a ground of his inconvenience, cannot a valid ground for seeking transfer of the case from the Court of proper jurisdiction to any other Court, even beyond the territorial limits of the case.

4. On 04.12.2023, when the matter was taken up again in Court, following order was passed: -

"Khuwaja Muhammad Imtiaz, Special Public Prosecutor holding brief for Mr. Shabbir Hussain Shigri, Special Prosecutor for FIA, requests for short adjournment on the ground that the latter could not reach from Lahore on account of his some personal exigency.

Learned counsel appearing on behalf of the respondents have opposed such request and have also raised objection with regard to maintainability of instant Crl. Transfer Application, as according to learned counsel, the matter is at the stage of examination of the witnesses, whereas, maximum punishment in terms of sections, as mentioned in the FIR, is about five years and the accused are behind the bar for the last four years, therefore, any order regarding transfer of case from Anti-Terrorism Court-XII, Karachi to Anti-Terrorism Court, Islamabad will amount to abuse of the process of law and denial of fair trial to the accused persons under the facts and circumstances of the case. This aspect of the matter will be examined on the next date of hearing.

As an indulgence and last chance, this matter is adjourned to 18.12.2023, to be taken up at 11:00 A.M., when the aforesaid Special Prosecutor for FIA shall come prepared to assist the Court. No further adjournment on any ground will be granted. In the meanwhile, the learned trial Court shall proceed with the case regularly and may not affect in view of the pendency of instant Crl. Transfer Application before this Court."

1. Pursuant to the aforesaid order, matter was fixed in Court on 18.12.2023 and was heard at length, whereas, following order was passed: -

"Heard the learned counsel for the parties at some length, however, Deputy Director (Legal), CTW, FIA, requests for some times to place on record the material, documents, which could justify seeking transfer of case from Anti-Terrorism Court-XII, Karachi to Anti-Terrorism Court, Islamabad. Let such material may be placed on record through a statement before next date with advance copy to the learned counsel for the respondents.

To come up on 22.01.2024, to be taken up at 11:00 A.M.

1. Today, when the matter is taken up for hearing, it has transpired that inspite of having sought time to place on record the material, documents, which could justify seeking transfer of case from Anti-Terrorism Court-XII, Karachi to Anti-Terrorism Court, Islamabad, Mr.Shabbir Hussain Shigri, Deputy Director (Legal), CTW, FIA and the learned Deputy Attorney General did not place any material, nor could even cite or refer to any single incident of alleged security threat by the accused persons either to the witnesses, the Prosecutor of the case, or the learned Judge of Anti-Terrorism Court-XII at Karachi. Whereas, it has also transpired that the case has not been concluded before the Anti-Terrorism Court No.XII at Karachi, as the prosecution failed to examine the prosecution witnesses, and the adjournments are sought in view of the pendency of instant Crl. Transfer Application before this Court.

2. It is settled principle of law that jurisdiction of a Court has to be jealously safeguarded and cannot be ousted, or transfer of a case from the competent Court of jurisdiction cannot be sought on flimsy grounds at the pleasure or sweet will either of the accused or of the Prosecutor to the disadvantages and inconvenience of either party. It will be advantageous to reproduce the provision of Section 28 of the Anti-Terrorism Act, 1997, relating to transfer of case, which reads as follows: -

28. Transfer of Cases. - (1) Notwithstanding anything contained in this Act, [the Chief Justice of High Court concerned] [on the application of any party to the proceedings or on the application of the Federal Government or a Provincial Government] may, if he considers it expedient so to do in the interest of justice, or where the convenience or safety of the witnesses or the safety of the accused so requires, transfer any case from one [Anti-terrorism Court] to another [Anti-Terrorism Court] within or outside the area.

[(1A) Where it appears to the Government that it would be in the interest of justice or expedient for protection and safety of judges, witnesses or prosecutors, it may apply to the Chief Justice of the High Court concerned for transfer of a case from an Anti-Terrorism Court falling within its jurisdiction to an Anti-Terrorism Court in any other place in Pakistan and for this purpose shall also seek concurrence of the Chief Justice of the High Court concerned.]

(2) [An Anti-Terrorism Court] to which a case is transferred under subsection (1) 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 and re-hear any witness who has given evidence and may act on the evidence already recorded [:]

[Provided that nothing herein contained shall affect the power of the presiding officer of the Anti-Terrorism Court to call any witness as is available under the law.]

[(3) The Federal Government may in the interests of justice and for protection and safety of witnesses and investigators, transfer the investigation of any case from one place to any other place in Pakistan.]

2025 P Cr. L J 577

[Sindh]

Before Mohammad Karim Khan Agha, J

Muhammad Yasir---Appellant

versus

The State---Respondent

Criminal Appeal No. 700 of 2019, decided on 10th September, 2024.

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Lodging of FIR with promptitude---Accused was charged for committing murder of the wife of complainant by firing and also causing fire arm injuries to his brother---Record showed that the FIR was lodged after six hours of the incident however based on the particular facts and circumstances of the case, it was found that the delay in lodging the FIR had been explained and was not fatal to the prosecution case---Complainant received a phone call about the incident who then rushed to the scene of occurrence where he found that the Mohalla people had taken his wife (deceased) to the hospital and thus he then went straight to the hospital where he recorded his S.154 Cr.P.C statement before the police which was the basis of the FIR---As such there was no time for the complainant to cook up a false case against the appellant---Appellant was named in the promptly lodged FIR with the specific role of murdering the deceased by firearm and causing firearm injury to injured---Even otherwise no specific/proven enmity had come on record between the appellant and the complainant or any witness which would motivate him/them to lodge a false case or give false evidence against the appellant---Circumstances established that the prosecution had proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Mansha v. The State 2011 SCMR 199; Waris Khan v. The State 2004 MLD 1982; Ghulam Mohy-ud-Din alias Haji Babu and others v. Liaquat Ali and others 2014 SCMR 1304; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Ilyas v. The State 2011 SCMR 460; Sheraz Asghar v. The State 1995 SCMR 1365 and Muhammad Bashir v. The State 2023 SCMR 190 ref.

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

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Ocular account---Evidence of eye-witnesses worthy of reliance---Accused was charged for committing murder of the wife of complainant by firing and also causing fire arm injuries to his brother---Prosecution's case rested on the statements of two eyewitnesses including injured---Injured witness was brother of the complainant and was living in the same house as the complainant at the time of the incident---Said witness narrated the same story as alleged by the complainant in FIR---Admittedly the eye-witness was related to the deceased however evidence of related witnesses could not be discarded unless there was some ill will or enmity between the eye-witnesses and the accused which had not been proven in this case by any reliable evidence---Said eye-witness knew the appellant before the incident as he was related to him and lived adjacent to his house---Incident occurred in day light and injured was fired at from relatively close range as such there was no case of mistaken identity and no need to hold an identification parade---Injured was named as a witness in the promptly lodged FIR and he was not a chance witness as he lived in the house where the incident occurred---Said witness had no proven enmity or ill will with the appellant which would lead him to implicate the appellant in a false case---Injured gave his evidence in straightforward manner and was not damaged during his lengthy cross-examination---Evidence of said witness was not improved from his S.161 Cr.P.C statement---Fact remained that the witness was injured at the scene of the crime as per his evidence giving weight to the fact that he was present during the incident---Other eye-witness was related to the deceased---According to his evidence, said witness was present at his aunt's house (the deceased) on 19.04.2014 where he had gone to pay a certain amount---Admittedly, said eyewitness was related to the deceased and in that respect the same consideration applied to him as to the eye-witness/injured---Circumstances established that the prosecution had proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Ijaz Ahmed v. The State 2009 SCMR 99; Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152; Ashfaq Ahmed v. The State 2007 SCMR 641; Munir Ahmed v. The State 2020 SCMR 968; Muhammad Ehsan v. The State 2006 SC 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; Qasim Shahzad and another v. The State 2023 SCMR 117 and Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 324, 109 & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay of seven days in recording the statement of injured witness---Inconsequential---Accused was charged for committing murder of the wife of complaint by firing and also causing fire arm injuries to his brother---Record showed that S.161 Cr.P.C statement of injured witness was recorded after a delay of seven to eight days which was usually fatal---However, the eye-witness was injured at the scene and his presence could not be doubted and he was named in the promptly lodged FIR (within hours of the incident)---Based on the particular facts and circumstances of the case,Court was not prepared to discard his evidence completely, as his evidence was found to be reliable, trust worthy and confidence inspiring---Circumstances established that the prosecution had proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Anwar v. The State 2024 YLR 1745; Abdul Majeed v. The State 2008 SCMR 1228; Qaiser Hussain alias Kashi alias Kashif v. The State 2011 PCr.LJ 1126; Abdul Khalique v. The State 2015 YLR 1015 and The State v. Muhammad Boota 2014 YLR 306 rel.

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Medical evidence corroborating ocular account---Accused was charged for committing murder of the wife of complainant by firing and also causing firearm injuries to his brother---Medical evidence and post mortem report fully supported the eye-witness/prosecution evidence that the deceased died from receiving a firearm injury in the place which they claimed---Even if there was some discrepancy in the medical evidence (which there was not in the case), ocular evidence if found to be trust worthy, confidence inspiring and reliable (as it has been so found in the case) would prevail over the medical evidence---Medical evidence also fully supported the leg injury to eye-witness being caused by firearm---Circumstances established that the prosecution had proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Minor contradictions in the statements of witnesses---Inconsequential---Accused was charged for committing murder of the wife of complainant by firing and also caused firearm injuries to his brother---Record showed that all the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, they might be 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 appellant---Circumstances established that the prosecution had proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive proved---Scope---Accused was charged for committing murder of the wife of complainant by firing and also causing fire arm injuries to his brother---Appellant had a motive for murdering the deceased and shooting the injured as per FIR and other evidence on record a case which the appellant had lodged against the complainant party had been dismissed---Hence the appellant wanted revenge against the complainant party---Circumstances established that the prosecution had proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapon of offence---Accused was charged for committing murder of the wife of complainant by firing and also causing firearm injuries to his brother---According to injured witness, he grabbed the pistol from the appellant before he made his escape good---However two separate police witnesses, both in their evidence claimed to have recovered the pistol from the wardat which was not possible as only one pistol was left at the crime scene and not two, and as such the recovery of the pistol that was actually used by the appellant for firing at the injured witness and the deceased became somewhat doubtful---Hence to veer on the safe side, Court excluded the recovery of the pistol and the matching Forensic Science Laboratory Report from consideration, however, circumstances established that the prosecution had otherwise proved its case against the appellant beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Imdad Ali Saheto for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General Sindh for the State.

Umar Farooq for the Complainant.

Date of hearing: 5th September, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Muhammad Yasir son of Muhammad Farooq, was tried in the Model Criminal Trial Court (Extension)/ Court of Vth Addl. Sessions Judge (East) Karachi in Session Case No.1795 of 2015 arising out of FIR No.135 of 2014 under Sections 302/324/109/34 P.P.C registered at Police Station Jamshed Quarter and vide Judgment dated 09.10.2019 he was convicted and sentenced under section 265-H(ii) Cr.P.C under Section 302 (b) P.P.C to suffer R.I. for life as Tazir and pay Rs.10,00,000/- (Rupees Ten Lac only) as compensation under section 544-A Cr.P.C to the legal heirs of deceased Mst. Salma and for offence punishable under section 324 P.P.C to suffer RI for 10 years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand). In case of default in payment of fine he shall suffer SI for (04.) month. However, he was also given the benefit of Section 382-B Cr.P.C.

1. The brief facts of the case are that accused Yasir son of Farooq and his mother Mst. Zeenat wife of Farooq used to reside in the house, situated in front of the complainant's house and some cases are pending between them in the Courts. On 19.04.2014, a case was disposed of in favour of complainant side due to which the accused persons were annoyed. On 19.04.2014, all the family members of complainant including his wife Mst. Salma as well as family members of his brother Sajid Mehmood were present in the house whereas the complainant had gone for offering Assar Prayer. At about 5:40 p.m. he received phone call of his daughter who was weeping and asked the Complainant to reach immediately at home. When the complainant reached at his house, he came to know that accused Yasir caused firearm injuries to his wife Mst. Salma, aged about 42 years and his brother Sajid Mehmood and they have been shifted to hospital. Thereafter the complainant reached at Civil Hospital and came to know that his wife Mst. Salma succumbed to her injuries and his injured brother Sajid Mehmood is admitted in Emergency Ward. The injured Sajid Mehmood disclosed to the complainant that accused Yasir and his mother accused Zeenat came at the outer door of their house, accused Yasir carrying pistol in his hand and forcibly tried to enter in the house, when injured Sajid Mehmood tried to stop him, accused Yasir with intention to commit his murder opened fire upon Sajid Mehmood, resultantly Sajid Mehmood received bullet injury in his left leg and fell down. Thereafter the accused Yasir entered into the house of complainant and also opened fire upon his wife Mst. Salma who has also sustained bullet injuries and later on succumbed to her injuries. It is further alleged that when accused Yasir came out from the house of complainant, the injured Sajid Mehmood tried to apprehend him and accused Yasir again opened fires upon Sajid Mehmood with intention to kill him and when the bullets of pistol were finished, injured Sajid Mehmood snatched pistol from the hand of accused Yasir, however, his mother accused Zeenat helped accused Yasir for releasing him from the hands of injured Sajid Mehmood and accused Yasir succeeded to run away from the spot. The complainant has further alleged that accused Yasir has committed the said offence on the instigation of his mother (absconder accused Zeenat), Javed, Tanveer and Shakeel, hence the complainant lodged the FIR against the nominated accused persons.

2. After usual investigation police submitted the challan and the trial court after completing necessary formalities framed the charge against the appellant to which he pleaded not guilty and claimed trial.

3. In order to prove its case the prosecution examined eight (08) witnesses and one CW, who exhibited numerous documents and other items. Then statement of accused under Section 342 Cr.P.C was recorded whereby he denied the allegations levelled against him by the prosecution witnesses and claimed his false implication by the complainant due to a family dispute. However, he neither examined himself on Oath nor led any evidence in his defense.

4. After hearing the parties and assessing the evidence on record the trial court convicted and sentenced the appellant as stated in earlier in this Judgment, hence appellant has preferred 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, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant is innocent and that he has been falsely implicated in this case by the complainant party due to a family dispute; that the eye-witnesses' evidence cannot be safely relied upon; that there was no independent mashir; that there are material contradictions in the evidence of the witnesses which renders their evidence un-reliable; that the pistol was foisted on the appellant by the police and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt.

7. On the other hand Learned APG and learned counsel for the complainant after going through the entire evidence of the prosecution witnesses as well as other record of the case supported the impugned judgment. In particular, they contended that the FIR was lodged promptly, the eye-witness's evidence was trust worthy, reliable and confidence inspiring and was to be believed; that the murder weapon (pistol) was recovered from the wardat along with empties that matched through a positive FSL report; that the medical evidence supported the ocular evidence and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions, they placed reliance on the cases of Muhammad Anwar v. The State (2024 YLR 1745), Muhammad Mansha v. The State (2011 SCMR 199), Abdul Majeed v. The State (2008 SCMR 1228), Qaiser Hussain alias Kashi alias Kashif v. The State (2011 PCr.LJ 1126), Abdul Khalique v. The State (2015 YLR 1015), The State v. Muhammad Boota (2014 YLR 306), Waris Khan v. The State (2004 MLD 1982) Ghulam Mohy-ud-Din alias Haji Babu and others v. Liaquat Ali and others (2014 SCMR 1304), Ijaz Ahmad v. The State (2009 SCMR 99), Muhammad Ilyas v. The State (2011 SCMR 460), Sheraz Asghar v. The State (1995 SCMR 1365) and Muhammad Bashir v. The State (2023 SCMR 190).

8. I have heard the learned counsel for the appellant as well as learned APG and learned counsel for the complainant 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, the blood and empties recovered at the scene of the crime I find that the prosecution has proved beyond a reasonable doubt that Mst. Salma (the deceased) was murdered by firearm and Sajjad was injured by firearm on 19.04.2014 at about 1815 hrs at House No.C-155 Patel Para Karachi.

10. The only question left before me therefore is who murdered the deceased and injured Sajjad by firearm 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 appellant for which he was convicted for the following reasons;

(a) That the FIR was lodged after 6 hours of the incident however based on the particular facts and circumstances of the case I find that this delay in lodging the FIR has been explained and is not fatal to the prosecution case. This is because the complainant received a phone call about the incident who then rushed to the wardat where he found that the Mohalla people had taken his wife (deceased) to the hospital and thus he then went straight to the hospital where he recorded his S.154 Cr.P.C statement before the police which was the basis of the FIR which was lodged by the concerned police official once he returned to the PS. As such there was no time for the complainant to cook up a false case against the appellant. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) The appellant is named in the promptly lodged FIR with the specific role of murdering the deceased by firearm and causing firearm injury to Sajjid. Even otherwise no specific /proven enmity has come on record between the appellant and the complainant or any PW which would motivate him/them to lodge a false case or give false evidence against the appellant.

(c) The prosecution's case rests on the eye-witnesses to the murder of the deceased and the injury to Sajjad whose evidence I shall consider in detail below;

(i) Eye-witness PW 2 Sajjad. He is the brother of the complainant and was living in the same house as the complainant at the time of the incident. According to his evidence on 19.04.2014 at between 5 to 6pm he came outside of his house and when he reached the gate of the house he saw the accused and his mother who lived in the adjacent house talking to each other. The accused came to enter the witnesses house and the witness tried to stop him whereupon the accused pointed a pistol on his chest which he caught hold of which lead to the accused firing on him which shot hit him on the leg. The accused tried to escape with the help of his mother and again made fire on him so he hid by a street in order to save himself. In the meantime the accused ran inside and fired on the deceased at the instigation of his mother. The accused tried to shoot him again but he had run out of bullets and the witness grabbed the pistol from his hand before the accused escaped. Mohalla people and PW 5 Hashim took him and the deceased to civil hospital.

Admittedly the eye-witness was related to the deceased however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye-witnesses and the accused which has not been proven in this case by any reliable evidence. In this respect reliance is placed on the cases of Ijaz Ahmed v. The State (2009 SCMR 99), Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152) and Ashfaq Ahmed v. The State (2007 SCMR 641).

This eye-witness knew the appellant before the incident as he is related to him and lives adjacent to his house. The incident occurred in day light and he was fired at from relatively close range as such there is no case of mistaken identity and no need to hold an identification parade. In this respect reliance is placed on the case of Munir Ahmed v. The State [2020 SCMR 968].

He is named as a witness in the promptly lodged FIR. He was not a chance witness as he lived in the house where the incident occurred. He had no proven enmity or ill will with the appellant which would lead him to implicate the appellant in a false case. He gave his evidence in straightforward manner and was not damaged during a lengthy cross examination. His evidence was not improved from his S.161 Cr.P.C statement. The fact that the witness was injured at the scene of the crime as per his evidence gives weight to the fact that he was present during the incident.

The main draw back in the evidence of this eye-witness is that his S.161 Cr.P.C statement was recorded after a delay of 7 to 8 days which is usually fatal to his evidence. However since the eye-witness was injured at the scene and his presence cannot be doubted; that he is named in the promptly lodged FIR (within hours of the incident) based on the particular facts and circumstances of this case I am not prepared to discard his evidence completely. Itend to believe his evidence which I find to be reliable, trust worthy and confidence inspiring and thus on the basis of the above defect whilst believing the eye-witnesses evidence I give it lesser weight than would usually be the case. In this respect reliance is placed on the cases of Sheraz Asghar (Supra), Abdul Khalique (Supra), The State v. Muhammad Bhoota (Supra), Abdul Majeed (Supra), Qaiser Hussain (Supra), Muhammad Anwar (Supra) and Waris Khan (Supra).

(ii) Eye-witness PW 5 Syad Hashim Ali. He is related to the deceased who is his aunt. According to his evidence he was present at his aunt's House (the deceased) on 19.04.2014 where he had gone to pay his BC amount. At about 5.45 to 6 pm eye-witness Sajjad came out of his room and left the house. He then heard a noise and firing from outside. The deceased moved towards the entrance of the house in order to go outside on hearing the firing. Her daughter Sumiya tried to follow the deceased but he pushed her in a room. The entrance door of the house was kicked open by the accused who entered the house and fired on the deceased. The deceased fell down and became unconscious due to fire arm injury. Eye-witness Sajjad then came inside the house in an injured condition with blood oozing from his leg. He took the body of the deceased to civil hospital where she died.

Admittedly the eye-witness was related to the deceased and in this respect the same considerations apply to him as to eye-witness PW 2 Sajjad as discussed above.

This eye-witness knew the appellant before the incident as he is related to him and lives in the adjacent house. He saw the appellant fire at the deceased and also saw Sajjad leave the house whereupon he heard firing and then saw Sajjad with an injury to his leg from close range as such there is no case of mistaken identity and no need to hold an identification parade. In this respect reliance is placed on the case of Munir Ahmed v. State [2020 SCMR 968].

He is named as a witness in the promptly lodged FIR. He was not a chance witness as he had a reason to be at the house of his aunt at that particular time. Namely, he was visiting her in order to pay his BC money. He had no proven enmity or ill will with the appellant which would lead him to implicate the appellant in a false case. He gave his evidence in straightforward manner and was not damaged during a lengthy cross examination. His evidence was not improved from his S.161 Cr.P.C statement which he gave straight after the incident. He corroborates the evidence of PW 2 Sajjad.

It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his/her evidence to be trust worthy, reliable and confidence inspiring and in this case I have found the evidence of this eye-witness to be trust worthy, reliable and confidence inspiring especially in respect of the correct identification of the appellant and as such I believe the same and place reliance on it. In this respect reliance is placed on the cases of Muhammad Ehsan v. The State (2006 SC 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 Qasim Shahzad and another v. The State (2023 SCMR 117). His evidence is also of good quality and it is settled by now that it is not the length of the evidence which is of importance but its quality. It is also corroborated by the evidence of PW 2 Sajjad the injured eye-witness whose evidence I gave some weight to. His evidence is also in line with the contents of the FIR as recorded by the complainant albeit based on hearsay evidence.

Having believed the evidence fully of one eye-witness and given lesser weight to the corroborative ocular evidence on the other eye-witness (Sajjad) as to the firearm injury caused to Sajjad by the appellant and murder of the deceased and the identification of the murderer as being the appellant I turn to consider the corroborative/supportive evidence whilst keeping in view that it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under;

"Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for am corroboration"

(d) That the medical evidence and post mortem report fully support the eye-witness/prosecution evidence that the deceased died from receiving a fire arm injury in the place which they claim. Even if there is some discrepancy in the medical evidence (which there is not in this case) it is well settled by now that ocular evidence if found to be trust worthy, confidence inspiring and reliable (as it has been so found in this case) will prevail over the medical evidence. In this respect reliance is placed on the case of Qasim Shahzad (Supra). The medical evidence also fully supports the leg injury to eye-witness Sajjad being caused by firearm.

(e) That all the PWs are consistent in their evidence (barring in respect of the recovery of the pistol which I shall discuss below) 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 SC 669). The evidence of the PW's provides a believable corroborated unbroken chain of events from the appellant arguing with Sajjad at the gate of the house to the appellant shooting Sajjad in the leg to the appellant breaking down the door of the house to the appellant shooting the deceased.

(f) The appellant had a motive for murdering the deceased and shooting the Sajjad as per FIR and other evidence on record as a case which the appellant had lodged against the complainant party had been dismissed and hence the appellant wanted revenge against the complainant party.

2025 P Cr. L J 624

[Sindh (Hyderabad Bench)]

Before Zafar Ahmed Rajput and Amjad Ali Bohio, JJ

Asghar Hussain---Apellant

Versus

The State---Respondent

Criminal Appeal No. D-145 of 2022, decided on 15th August, 2024.

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

----S. 9(c)---Constitution of Pakistan, Art. 12---Possession of narcotic substances---Appreciation of evidence---Protection against retrospective punishment---Sentence, reduction in---Prosecution case was that 2120 grams charas was recovered from the possession of appellant---Article 12 of the Constitution lays down that no law shall authorize the punishment of a person for an act or omission which was not punishable by law at the time when act or omission cropped up, or for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed---As per prosecution, the appellant committed the alleged offence on 14.08.2022---Provisions of S.9 of the Control of Narcotic Substances Act, 1997 ('Act of 1997'), inter alia, were amended by the Control of Narcotic Substances (Amendment) Act, 2022 ('Act of 2022') after the date of commission of alleged offence on 05.09.2022---Trial Court convicted the appellant and sentenced him under the amended S.9(1) of the Act of 1997, which being in violation of Art.12(b) of the Constitution required modification---Consequently, the conviction of the appellant was converted from amended S.9(1) to S.9(c) of the Act of 1997, which was enacted at the time the offence was committed, and his sentence was modified accordingly by reducing it from R.I for 9 years and fine of Rs.30,000/- to R.I for 5 years and six 6 months with fine of Rs.25,000/----Appeal was dismissed with modification in sentence.

Ghulam Murtaza's case PLD 2009 Lahore 362 and Ameer Zaib v. The State PLD 2012 SC 380 ref.

Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 rel.

Samiullah Rind for Appellant.

Nazar Muhamamd Memon, Additional Prosecutor General Sindh for the State.

Date of hearing: 15th August, 2024.

Judgment

Zafar Ahmed Rajput, J.---This Criminal Appeal is directed against the judgment dated 29.04.2022, passed in Special Case No.165 of 2022, arising out of Crime No.205 of 2022 registered under section 9 (c) of the Control of Narcotic Substances Act, 1997 ("the Act of 1997") at P.S A-Section Latifabad, Hyderabad, whereby the Special Judge Control of Narcotic Substances / Model Criminal Trial Court-II/IVth Additional Sessions Judge, Hyderabad convicted the appellant for the said offence and sentenced him to suffer R.I for nine (09) years being lesser punishment provided at serial No. 3(c) in the TABLE of section 9 (1) of the Act of 1997, as amended by the Control of Narcotic Substances (Amendment) Act, 2022 ("the Act of 2022"), promulgated on 05th September, 2022, and to pay fine of Rs. 30,000/- in default thereof, he shall undergo S.I for one month more.

1. At the very outset, learned counsel for the appellant contends that he does not press this appeal on merit; however, as the alleged offence of possessing 2120 gram charas was committed before promulgation of the Act of 2022, the appellant cannot be convicted and sentenced under the amended section of 9 (1) of the Act of 1997 retrospectively. He urges that the conviction and sentence should be recorded under section 9 (c) of the Act of 1997 as per the ratio of Ghulam Murtaza case reported as PLD 2009 Lahore 362.

2. Learned Addl. P.G while conceding to fact that since the alleged offence was committed by the appellant earlier to the amendment made in the Act of 1997, he cannot be awarded punishment other than one that was prescribed by the Act of 1997 for that offence at the time the offence was committed.

3. Heard and record perused.

4. As per prosecution case, on 14.08.2022, the appellant was arrested by the complainant SIP Syed Imam Dino Shah of PS A-Section Latifabad on being found in possession of 2120 gram charas at main gate of Amani Shah Graveyard, situated in Unit No.11, Latifabad, Hyderabad. After fullfledged trial, he was convicted and sentenced as mentioned above vide impugned judgment.

5. Before amendment vide Act of 2022, Section 9 (c) of the Act of 1997, prescribed punishment of death or imprisonment of life or imprisonment of term which may extend to 14 years with fine up to one (01) million if the quantity of narcotic drug psychotropic substance exceeds the limits of one (01) kilogram. In the sentencing policy approved in Ghulam Murtaza case (supra), which was upheld by the Hon'ble Supreme Court in the case of Ameer Zaib v. The State (PLD 2012 SC 380), the sentence for recovery of charas in connection with the Act of 1997 exceeding 2 kilograms and upto 3 kilograms is prescribed as R.I for 5 years and 6 months and fine of Rs.25,000/- and in default S.I for 5 months and fifteen (15) days .

6. Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") provides protection against retrospective punishment, which reads as under:

12. Protection against retrospective punishment (1) No law shall authorize the punishment of a person-

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

(2)

1. It appears that Article 12 of the Constitution lays down that no law shall authorize the punishment of a person for an act or omission which was not punishable by law at the time when act or omission cropped up, or for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offense was committed. In other words, under Article 12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for an offence then the one which was available for it when committed. As observed in the case of Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599), there is no fundamental difference between retrospective and ex post facto law. The former expression is used in respect of civil matters and the latter in respect of criminal matters which by their nature are more serious. Ex post legislation means:

(i) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal and punishes such action.

(ii) Every law that aggravates a crime or makes it greater than it was when committed.

2025 P Cr. L J 633

[Sindh]

Before Muhammad Karim Khan Agha, J

Rehman Bacha alias Chota---Apellant

Versus

The State---Respondent

Criminal Appeal No. 29 of 2020, decided on 19th April, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account not proved---Identification of accused not established---Accused was charged for committing murder of the brother-in-law of complainant by firing---Ocular account of the incident had been furnished by two eye-witnesses---One of the eye-witnesses was friend of the deceased---Said witness admitted in his cross-examination that he did not know the name of the accused before the incident and had not even seen him before that---Name of accused was disclosed to the said witness after his quarrel with the deceased---In his S. 161 Cr.P.C statement said witness gave no hulia or description of the appellant as the person whom he saw shooting the deceased---Said witness was only told the name of the appellant by someone who did not give evidence, whose name may or may not have been correct---It was imperative for the prosecution to have conducted an identification parade to be sure that it was in fact the appellate who was seen by the said witness murdering the deceased by firearm---However no such identification parade was ever held---Other eye-witness was the son of the deceased, however, in his evidence, said witness stated that he took his father to the hospital alone and tried to talk to his father to inquire as to who had fired on him, and he was talking but he did not take the name of any person---Thus, if said eye-witness had seen and knew who had shot his father, it begged the question as to why he asked his father about the identity of person who had fired on him---Said witness admitted during his cross-examination that he had not even seen the accused before the incident which again begged the question how he knew the identity of the accused who he had not seen before---Therefore, reliance could not be placed on such eye-witness as to the correct identification of the person who murdered the deceased---Thus, the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Khalid Mehmood alias Khaloo v The State 2022 SCMR 1148; Abdul Ghafoor v. The State 2022 SCMR 1527; Nazir Ahmad v. The State 2018 SCMR 787; Saeed Ahmad v. Muhammad Nawaz 2012 SCMR 89; Tajamal Hussain Shah v. The State 2022 SCMR 1567; Ayyaz Ali v. The State 2021 MLD 1501 and Bangul v. The State 2019 PCr.LJ 1351 ref.

Javed Khan v. The State 2017 SCMR 524 and Mian Sohail Ahmed v. The State 2019 SCMR 956 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding or not producing best witnesses---Effect---Accused was charged for committing murder of the brother-in-law of complainant by firing---Prosecution withheld some of the best evidence in the case without explanation---"RK" who was named in the FIR as an eye-witness and who it seemed along with eye-witness/friend of the deceased gave the hearsay evidence concerning the murder which formed the basis of the FIR was not called as a witness---Mr. "J" who also witnessed the incident from the shack where the deceased was shot was also dropped as a prosecution witness without explanation and thus under Art.129(g) Quanun-e-Shahdat, 1984, an adverse inference could be drawn that neither of those witnesses would have supported the prosecution case---Thus, the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Voluntary surrender by accused---Accused was charged for committing murder of the brother-in-law of complainant by firing---Accused was not arrested rather he surrendered himself before the police claiming that at the time of the incident he was in his village in an other province and he produced one witness to that effect---In such like cases it was unusual for a guilty person to voluntarily surrender to the police when he could have continued to remain in hiding in an other province with little chance of his being arrested shortly after the FIR was lodged---Thus, the prosecution had not proved its case against the accused beyond a reasonable doubt---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---Inconsequential---Accused was charged for committing murder of the brother-in-law of complainant by firing---Prosecution's case was that after his arrest the accused led the police to his house where he had hidden the pistol (murder weapon)---However, when that pistol was sent for Forensic Science Laboratory with the empty recovered at the crime scene, the Forensic Science Laboratory Report was negative---Thus, the recovered pistol was not the murder weapon, which begged the question as to why a person would produce an unlicensed pistol before the police simply to be charged with an offence under the Arms Act when it was not the murder weapon in the case under investigation---Such fact did not appeal to logic, commonsense or reason and suggested that the pistol was foisted upon the accused---Thus, the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Confession before the police---Not admissible in exedence---Accused was charged for committing murder of the brother-in-law of complainant by firing---Accused allegedly confessed to the murder before the police however such confession was inadmissible in evidence---Had it been a genuine confession it again begged the question as to why the police did not produce the accused before a Magistrate to record his judicial confession which would have been potentially of evidentiary value---Thus, the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Accused was charged for committing murder of the brother-in-law of complainant by firing---Although the medical evidence supported the prosecution case, however it could only identify the nature of the injury, the seat of the injury and type of weapon used but was of no assistance in identifying the perpetrator---Thus, the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Statement of accused under S.342, Cr.P.C---Scope---Accused was charged for committing murder of the brother-in-law of complainant by firing---Accused claimed in his S.342 Cr.P.C statement that he was at his village at the time of the incident and he produced one defence witness in support of his claim---Fact remained that accused surrendered before the police from his village in other Province which bolstered his claim especially as it was found that there was no reliable identification of the accused as the person who shot and murdered the deceased at the crime scene---Thus, the prosecution hadnot proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Shamsul Hadi for Appellant.

Mohammad Iqbal Awan, Addl. Prosecutor General for the State.

Iftikhar A. Gohar for the Complainant.

Date of hearing: 17th April, 2024, Judgment

Muhammad Karim Khan Agha, J.---Appellant Rehman Bacha has assailed o the impugned judgment dated 23.10.2019 passed by learned 1st Additional Sessions Judge/Model Criminal Trial Court (MCTC-1), Malir Karachi in Sessions Case No.969 of 2018 arising out of Crime No.284 of 2018 under Section 302, P.P.C. registered at PS Quaidabad, Karachi whereby the appellant was convicted under section 265-H(2) Cr.P.C. and sentenced to life imprisonment. Appellant was also ordered to pay compensation under section 544-A Cr.P.C. to the legal heirs of deceased to the sum of Rs.20,00,000/- (Rupees two million only). Appellant was extended benefit of section 382-B Cr.P.C.

1. The brief facts of the prosecution case are that on 27.08.2018 at 0045 hours at Mehran High Way Gul Ahmed Chowrangi Opp: New Lucy Hotel District Malir Karachi the accused committed "Qatl-i-amd of deceased Ahmed Ali son of Misal Khan, aged about 49 years (brother in law of complainant Nasir Ali) by causing him fire-arm injuries and thereby committed the offence punishable under Section 302, P.P.C. Hence the aforesaid FIR was lodged against the appellant.

2. After completing all the legal formalities, the charge was framed against the accused to which he pleaded not guilty and claimed trial of the case.

3. The prosecution in order to prove its case examined 08 prosecution 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. He did not give evidence on oath but called one 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 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 23.10.2019 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 contended that the appellant is innocent and has been mistakenly implicated in this case; that the evidence of the eye-witnesses cannot be safely relied upon especially in terms of the correct identification of the accused; that the best eye-witness evidence was withheld or given up by the prosecution which raises the inference that these eye-witnesses would not have supported the prosecution case; that the pistol was foisted on the appellant by the police and it did not produce a positive FSL report when it was matched with the empty recovered at the crime scene and that for all or 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 placed reliance on the cases of Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148); Abdul Ghafoor v. The State (2022 SCMR 1527), Nazir Ahmad v. The State (2018 SCMR 787); Saeed Ahmad v. Muhammad Nawaz (2012 SCMR); Tajamal Hussain Shah v. The State (2022 SCMR 1567); Ayyaz Ali v. The State (2021 MLD 1501) and Bangul v. The State (2019 PCr.LJ 1351).

7. Learned APG and learned counsel for the complainant fully supported the impugned judgment and contended that the prosecution had proved its case beyond a reasonable doubt against the appellant and as such the appeal be dismissed. In support of their contentions they placed reliance on the record, 9. I have heard the learned counsel for the appellant as well as learned APG and learned counsel for the complainant and have also perused the material available on record and the case law cited at the bar.

8. Based on my reassessment of the evidence of the PW's especially the medical evidence and other medical reports, recovery of empty at the crime scene I find that the prosecution has proved beyond a reasonable doubt that Ahmed Ali (the deceased) was murdered by firearm on 27.08.2016 at about 0045am at Mehran highway, Gul Ahmed Chowrangi, opposite new lucky hotel, Malir, Karachi.

9. The only question left before me is whether it was the appellant who murdered the deceased by firearm at the said time, date and location?

10. After my reassessment of the evidence I find that the prosecution has NOT 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) Admittedly the S.154, Cr.P.C Statement of the complainant was lodged with reasonable promptitude within 9 hours of the incident with this delay being explained by the fact that the complainant having received the information concerning the incident had to reach Karachi, then wait until the deceased died as he was injured and died in hospital and then after collecting the body he lodged the FIR. The actual events of the murder mentioned in the FIR are however based on the complainant's own inquires which are based on hearsay evidence. He names the appellant as murdering the deceased by firearm after a quarrel and admittedly he had no ill will or enmity with the appellant to implicate him in a false case.

(b) I find that the prosecution's case rests on the evidence of the two eye-witnesses to the murder of the deceased and whether I believe their evidence especially in relation to the correct identification of the appellant as being the person who murdered the deceased whose evidence I shall consider in detail below;

(i) Eye-witness PW 4 Talha. He is a friend of the deceased. According to his evidence on 27.08.2018 at about midnight he was available at Lucky Hotel Gul Ahmed Chowrangi when he heard a commotion and went to investigate where he saw the deceased arguing with the accused. People separated them where after the accused left and the deceased sat near Jehanzeb's cabin and he returned to the hotel. After 10 to 15 minutes the accused returned and hit the deceased over his head with a pistol. He then saw the accused fire on the deceased which fire hit the deceased in the abdomen and thereafter the accused ran away. The deceased was taken in an injured condition to hospital and he learnt that the deceased had expired at hospital at 10am the next day.

This eye-witness was an independent witness who had no enmity or ill will with the appellant and as such had no reason to implicate him in a false case and was also not a chance witness as he lived in the same mohalla and was a neighbor of the deceased. There was light from the hotel at the time of the incident so he would have been able to see the same from the 30 to 40 feet from where he saw the incident. He gave his S.161, Cr.P.C eye-witness statement within a day and there are no material contradictions in it and the evidence which he gave at trial. He gave his evidence in a straight forward manner and was not damaged during cross-examination and as such I believe his evidence as regards him witnessing the incident.

The next issue is whether I believe that he correctly identified the appellant as the person who murdered the deceased. There were lights on at the hotel so seeing the appellant ought not to have been an issue however he admitted during his cross-examination, "I did not know the name of the accused before this incident and had not even seen him before that. The accused name was disclosed to me after his quarrel with the deceased." In his S.161, Cr.P.C statement he gave no hulia or description of the appellant as the person who he saw shooting the deceased. He was only told the name of the appellant by some one who did not give evidence which name may or may not have been correct. The appellant was not arrested on the spot but a few days after the incident when he returned voluntarily from his village and surrendered before the police. Under the circumstances narrated above it was imperative for their to have been an identification parade to be sure that it was in fact the appellant who this eye-witness saw murdering the deceased by firearm. However no such identification parade was ever held.

In this respect reliance is placed on the case of Javed Khan v. The State (2017 SCMR 524) concerning the necessity for an early hulia/description of an accused by an eye-witness before an identification parade and the need to strictly follow the rules governing identification parades where it was held as under at P.528 to 530:

"7. We have heard the learned counsel and gone through the record. The prosecution case rests on the positive identification proceedings and the Forensic Science Laboratory report which states that the bullet casing sent to it (which was stated to have been picked up from the crime scene) was fired from the same pistol (which was recovered from Raees Khan in another case). We therefore proceed to consider both these aspects of the case. As regards the identification proceedings and their context there is a long line of precedents stating that identification proceedings must be carefully conducted. In Ramzan v Emperor (AIR 1929 Sid 149) Perceval, JC, writing for the Judicial Commissioner's Court (the precursor of the High Court of Sindh) held that, "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases" (page 149, column 2). In Alim v. State (PLD 1967 SC 307) Cornelius CJ, who had delivered the judgment of this Court, with regard to the matter of identification parades held, that, "Their [witnesses] opportunities for observation of the culprit were extremely limited: They had never seen him before. They had picked out the assailant at the identification parades, but there is a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier" (page 313E). In Lal Pasand v. State (PLD 1981 SC 142) Dorab Patel J, who had delivered the judgment of this Court, held that, if a witness had not given a description of the assailant in his statement to the Police and identification took place four or five months after the murder it would, "react against the entire prosecution case" (page 145C). In a more recent judgment of this Court, Imran Ashraf v. State (2001 SCMR 424), which was authored by Ifrikhar Muhammad Chaudhry J, this Court held that, it must be ensured that the identifying witnesses must "not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible" (page 485P).

8. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under S.161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime and who he had fleetingly seen, were in fact time actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect....

9. As regards the identification of the appellants before the trial court by Nasir Mehboob (PW-5), Subedar Mehmood Ahmed Khan (PW-6) AND Idress Muhammad (PW-7) that too will not assist the Prosecution because these witnesses had a number of opportunities to see them before their statements were recorded. In State v. Farman (PLD 1985 SC 1), the majority judgment of which was authored by Ajmal Mian J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accused who the witness had previously met a number of times (page 25V). The same principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v. State (1998 SCMR 752), in which case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above) on the credibility of the process. The identification of the appellants in court by eye-witnesses who had seen the culprits fleetingly once would be inconsequential." (bold added)

The case of Mian Sohail Ahmed v.State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly identified.

As such for the reasons mentioned above I find that I cannot place reliance on this eye-witness as to the correct identification of the person who murdered the deceased being the appellant.

(ii) Eye-witness PW 5 Abid Jamal. He is the son of the deceased. According to his evidence on 27.08.2018 he went with his father/deceased to collect medicine for his younger brother who was unwell. He was dropped at the medical store whilst his father/deceased went to meet friends. He witnesses the initial quarrel between the deceased and the accused and also saw the accused shoot his father and runaway before he took his father to hospital by ambulance who was conscious at the time but passed away in the operating theatre of the hospital.

This eye-witness although related to the deceased being his son had no enmity or ill will with the appellant and as such had no reason to implicate him in a false case and was also not a chalice witness as he lived In the same house as his father and had gone with his father to buy medicines for his sick brother. There was light from the hotel at the time of the incident so he would have been able to see the incident. He gave his evidence in a straight forward manner and was not damaged during cross-examination and as such I believe his evidence as regards him witnessing the incident as with PW 4 Talha.

The next issue, as with PW 4 Talha, is whether I believe that he correctly identified the appellant as the person who murdered the deceased. There was light coming from the hotel so seeing the appellant ought not to have been an issue. However in his evidence in chief he states that, "I took my father to the hospital alone. When I tried to talk to my father to inquire as to who had fired on him he was talking but he did not take the name of any person. It is correct that my father had talked to one even when we reached the hospital when he said that his legs may be straightened". Thus, if this eye-witness saw and knew who had shot his father it begs the question as to why he asked his father who had fired on him. The implication is that this eye-witness was unable to recognize/identify the person who had fired on his father. This implication is further fortified by the fact that he admitted during his cross-examination that, "I had not even seen Rehman Badshah (the accused) before this incident", which again begs the question how he knew the identity of the accused who he had not seen before. As with PW 4 Talha no identification parade was made after the arrest of the appellant which was not made on the spot.

Thus, for the reasons mentioned above I find that I cannot place reliance on this eye-witness as to the correct identification of the person who murdered the deceased being the appellant..

Other evidence and considerations.

(c) The prosecution withheld some of the best evidence in this case without explanation. For example, Riaz Khan who is named in the FIR as an eye-witness and who it seems along with PW 4 Talha gave the hearsay evidence concerning the murder which formed the basis of the FIR was not called as a witness. Jehanzeb who also witnessed the incident from the shack where the deceased was shot was also dropped as a prosecution witness without explanation and thus under Article 129 (g) Qanun-e-Shahadat Order 1984 the adverse inference can be drawn that neither of these witnesses would have supported the prosecution case.

(d) The appellant was not arrested rather he surrendered himself before the police claiming that at the time of the incident he was in his village in KPK and he produced one witness to this effect. In such like cases it is unusual for a guilty person to voluntarily surrender to the police in Karachi when he could have continued to have remained in -hiding in KPK with little chance of him being arrested shortly after the FIR was lodged.

(e) That it was the prosecution's case that after his arrest the accused lead the police on his pointation to the place where he had hidden the pistol (murder weapon) in his house. However when this pistol was sent for FSL, with the empty recovered at the crime scene the FSL report was negative. Thus, the recovered pistol was not the murder weapon which begs the question as to why a person would produce an unlicensed pistol before the police simply to be charged with an offence under the Arms Act when it was not the murder weapon in the case under investigation. This does not appeal to logic, commonsense or reason and suggests that the pistol was foisted on him.

(f) The appellant had no motive to murder the deceased.

(g) The appellant allegedly confessed to the murder before the police however such confession is inadmissible in evidence. Had this been a genuine confession it again begs the question as to why the police did not produce the appellant before a magistrate to record his judicial confession which would have been potentially of evidentiary value.

2025 P Cr. L J 654

[Sindh (Mirpurkhas Bench)]

Before Muhammad Saleem Jessar, J

Muhammad Usman---Apellant

Versus

The State---Respondent

Criminal Jail Appeals Nos. S-13 of 2024 (New) and S-75 of 2018 (Old), decided on 10th June, 2024.

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

----Ss. 302(b), 324, 337-A(i) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, common intention, haraabah---Appreciation of evidence---Jurisdiction of High Court---Accused was charged for the offence in question and was convicted after trial by the Trial Court---Appeal was filed before the High Court---Complainant got registered instant FIR under the provisions of the Ordinance, 1979---After submission of challan, Trial Court had framed the charge under the provisions of the Ordinance, 1979, as well as P.P.C---Complainant was examined before the trial Court and in his examination-in-chief, the complainant had categorically deposed that he received information that some unknown persons caused injuries to his nephew and cousin while committing robbery of motor cycle from them---Appellant was tried in consonance of the charge and on conclusion of trial, the appellant was convicted and sentenced under the provisions of P.P.C, but before handing down the judgment the trial Court did not alter the charge---Besides, the sentence awarded to the appellant also exceeded the term of two years---Per Ordinance-II of 1982, second proviso to Art.24 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was inserted which provided the offences punishable under Art.9 or 17 shall be triable by the Court of Session not by the Magistrate authorized under S.30, Cr.P.C, hence, an appeal from an order under either of said Articles or from an order under any provision of that Ordinance which imposed a sentence of imprisonment for a term exceeding two years shall lie to Federal Shariat Court---Since the complainant had specifically mentioned in the FIR, he received information that some unknown culprits while committing robbery from his cousin and nephew had caused injuries to them, therefore, he got registered FIR under Ss.302, 324, 337-A(i), 34 P.P.C read with S.17(4) of the Ordinance---Hence, the Trial Court framed the charge against the appellant under S.17(4) of the Ordinance and the appellant was also tried for said charges---In such circumstances, appeal in hand was completely misconceived and not maintainable as it had wrongly been presented before the High Court---Consequently, the Additional Registrar of High Court was directed to send the file of instant jail appeal to the Federal Shariat Court of Pakistan through its Registrar for further necessary action/proceedings.

Ali Dino and another v. The State 2017 PCr.LJ 578 and Juman and another v. The State PLD 2016 Sindh 191 ref.

Falak Sher v. State 1996 PCr.LJ 804; PLD 2011 FSC 1; Ghazanfar Ali v. State 2010 YLR 657; State through Advocate General Sindh v. Munir Ahmed and 2 others vide PLD 2007 Karachi 184 and Muhammad Sharif v. State PLD 1999 SC 1063 rel.

(b) Criminal trial---

----Jurisdiction---Forum of appeal---If a Court not possessed of jurisdiction to try a case wrongly assumes jurisdiction and exercises power not vested in it, appeal from its decision would lie in the same manner as an appeal would lie from a decision made with jurisdiction. [p. 660] B

Zubair Ahmed Khuhawar for Appellant.

Shahzado Saleem Nahyoon, Additional Prosecutor General Sindh for the State.

Date of hearing: 10th June, 2024.

Judgment

Muhammad Saleem Jessar, J.---Through instant appeal, appellant Muhammad Usman son of Muhammad Qaim has impugned the judgment dated 13.03.2018 passed by learned Additional Sessions Judge-I, Mirpurkhas (Trial Court), vide Sessions Case No. 146 of 2012, Re; State v. Muhammad Usman, arisen out of FIR No.64 of 2012 registered with P.S Digri, for offences punishable under Sections 302, 324, 337-A(i), 34 P.P.C read with section 17(4) of the Offences against Property Enforcement of H.O, 1979 (The Ordinance). The trial Court framed charge against appellant under sections 302, 337-A(i), 34, P.P.C. read with section 17(4) Offences against Property (Enforcement of Hudood) Ordinance, 1979 (The Judgment). However, after recording evidence as per the charge, learned trial Court convicted and sentenced the appellant for offence under Section 302(b) read with section 34, P.P.C. for life as Ta'zir with fine amount of Rs.2,00,000/- as compensation under section 544-A Cr.P.C to be paid to legal heirs of deceased Muhammad Hayat, in case of default he shall suffer S.I for five months more, and for offence under section 324 read with section 34, P.P.C, to suffer R.I for seven years with fine of Rs.20,000/- and Rs.1,00,000/- as compensation in terms of section 544-A Cr.P.C to be paid to injured Muhammad Ibrahim and in case of default he shall suffer S.I for three months more and for offence under section 337-A(i) read with section 34, P.P.C, Rs.50,000/- as Daman and also to suffer R.I for one year as Ta'zir.

1. This appeal was admitted for regular hearing on 06.04.2018, thereby notice was issued to learned Addl. P.G., R and Ps were called and Paper Book was also directed to be prepared.

2. Before proceeding with the appeal, this Court called upon learned counsel for the appellant to satisfy the Court, as to jurisdiction of this Court, whether the appeal in hands would lie before this Court or before the Federal Shariat Court in view of the fact that the case/ FIR was registered for the offences under Sections 302, 324, 34 P.P.C read with section 17(4) of the Ordinance, whereas appellant was convicted under sections 302(b), 324 and 337-A(i) read with section 34 of P.P.C.

3. Heard learned counsel for the appellant and learned A.P.G appearing for the State.

4. Learned counsel for the appellant re-iterates that the appeal would lie before this Court as the appellant has been convicted and sentenced to under the provisions of P.P.C., therefore, this Court is competent to entertain the appeal, hence it need not to be transferred to Federal Shariat court.

5. Conversely, learned A.P.G contended that the appeal would lie before Federal Shariat Court, as the charge was framed under Hudood Laws, besides, the complainant has specifically mentioned in the FIR that whilst committing robbery, the deceased was murdered. Learned Addl. P.G, further points out that after recording evidence as per the charge, the trial Court has not amended it nor made discussion upon the evidence before passing the Judgment. In support of his argument, he relied upon case of Ali Dino and another v. The State reported in 2017 PCr.LJ 578 and Juman and another v. The State reported in PLD 2016 Sindh 191.

6. The complainant got registered instant FIR Exh.04/A under the provisions of the Ordinance, 1979. After submission of challan, learned trial Court had framed the charge Exh.02 under the provisions of the Ordinance, 1979 as well as P.P.C. The complainant was examined before the trial Court as PW-1 on 06.01.2015 at Exh.4/A. In his examination-in-chief, the complainant has categorically deposed that "I received information that some unknown persons caused injuries to my nephew and cousin Ibrahim while committing robbery of motor cycle from them at village Badal Shah". The appellant was tried in consonance of the charge. And on conclusion of trial, the appellant was convicted and sentenced to under the provisions of P.P.C, but before handing down the judgment the learned trial Court did not alter the charge. Besides, the sentence awarded to the appellant also exceeds the terms of two years.

7. Per Ordinance-II of 1982, second proviso to section 24 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 was inserted which provides the offences punishable under section 9 or 17 shall be triable by the Court of Sessions not by the Magistrate authorized under section 30 of Criminal Procedure Code, 1898 (Cr.P.C.) hence, an appeal from an order under either of said Articles or from an order under any provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years shall lie to Federal Shariat Court. It will be appropriate to reproduce subsection (2) of Article 24 of the Ordinance, which reads as under: -

"2 (provided further that an offence punishable under section 9 or 17 shall be triable by the Court of Session and not by a Magistrate authorized under section 30 of the said Code and on appeal from an order under either of the said Section 3 (or from an order under any provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years) shall lie to Federal Shariat Court".

1. According to Article 203-DD of Constitution of Islamic Republic of Pakistan 1973, the Federal Shariat Court call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by criminal court.

2. In order to reach at right conclusion, I have gone through different case laws. In case reported as Falak Sher v. State (1996 PCr.LJ 804), the view taken was that every case, arising out of Hudood Laws irrespective of the fact whether the conviction is recorded under Hudood or General laws appeal would be competent before the Federal Shariat Court alone. As per the judgment of Federal Shariat Court reported as PLD 2011 FSC 1, Federal Shariat Court is only competent to decide the case under Article 203-DD of the Constitution Islamic Republic of Pakistan 1973 and there is bar on jurisdiction for other Court(s).

3. In case of Ghazanfar Ali v. State (2010 YLR 657), it is held that since the accused was charged and tried under Article 17 of the Ordinance, 1979 notwithstanding the fact that he was acquitted from the charge under said Ordinance but convicted only under penal Code, the appeal would lie to the Federal Shariat Court and not to the High Court. Reference for Confirmation of death sentence would also be competent before Federal Shariat Court.

4. In case reported as State through Advocate-General Sindh v. Munir Ahmed and 2 others vide PLD 2007 Karachi 184, this Court while deciding the Criminal Acquittal Appeal No. 293 of 1993 decided on 22-11-2006 held "we have gone through the case of Muhammad Sharif v. State PLD 1999 SC 1063 and found that the appellate Bench of the Honourable Supreme Court of Pakistan after considering the conflicting judgment of various High Courts and interpreting the section 27 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 decided that word "Court" appearing in section 417 Cr.P.C. would mean the Federal Shariat Court after giving interpretation to the word "Mutatis mutandis" appear in section 27 of the Ordinance. It was held that appeal against judgment lies to Federal Shariat Court and not High Court. In case of State v. Parik reported in 1997 PCr.LJ 1900 it was held that under section 24 of the Ordinance, 1979 "whether a case is registered under this Ordinance, irrespective of the fact whether conviction is awarded or acquittal is made, the appeal shall lie to Federal Shariat Court except in those cases where sentence is less than two-years."

5. In a case {Re: Qurban Ali v. State} Criminal Appeal No.14 of 1998 decided on 18.8.1998 it was held by this court that all appeals arising out of cases of which cognizance was taken under Hudood laws would be competent only before the Federal Shariat Court and not before the High Court even though the conviction has been recorded under general law.

2025 P Cr. L J 722

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

Muhammad Saifal Kumbhar---Apellant

Versus

The State and another---Respondents

Criminal Revision Application No. S-63 of 2022, decided on 10th March, 2023.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 250---Possession of illicit weapon---False complaint---Remedy---Compensation awarded to the complainant for false accusation made by accused---Validity---Record showed that initially, FIR of the present case was lodged by the applicant/complainant and the same was challaned after investigation---Trial Court/Sessions Court after full dress trial acquitted the accused and directed the complainant/informer to award compensation to accused, who dragged him in a false and frivolous criminal case---Show cause notice to pay compensation was issued to complainant for bringing a false and vexatious case on the board---Subsequently, the reply to the notice issued to the applicant/complainant by Trial Court was found to be unsatisfactory which resulted in passing the impugned order---Bare reading of the S.250, Cr.P.C reflected that only the magistrate in magisterial trial was empowered to invoke S.250, Cr.P.C and not the other Courts---Thus, the order of Trial Court was without jurisdiction, therefore, the same being illegal was set-aside---Criminal revision application was allowed accordingly.

Muhammad Khan v. The State and others PLD 2007 SC 5 rel.

(b) Interpretation of statutes---

----If the words of the statutes are themselves clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense---The words themselves in such a case best declare the intentions of legislature.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 rel.

Muhammad Afzal Jagirani for Applicant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Date of hearing: 17th February, 2023.

Order

Zulfiqar Ali Sangi, J.---By way of filing instant Crl. Revision Application, applicant/complainant Muhammad Saifal Kumbhar impugns an order dated 24.09.2022 passed in Sessions Case No.205/2022 (Re. St. v. Dost Ali Brohi) outcome of FIR bearing Crime No.24/2022 registered with P.S Madeji, for offence punishable under Sections 25 of Sindh Arms Act, 2013, by learned 5th Additional Sessions Judge, Shikarpur, on his reply to show-cause notice, awarding him compensation of Rs.100,000/- to be paid to be accused by treating his reply as unsatisfactory.

1. Learned counsel for the applicant/complainant has prayed for setting aside of the impugned order by reiterating the same grounds of his revision application while learned D.P.G for the State has frankly conceded to it.

2. I have heard learned counsel for the applicant and learned Deputy Prosecutor General and perused the material available on the record and the law cited at the bar with their able assistance.

3. On meticulous analysis, it is observed that initially FIR of the present case was lodged by the applicant/complainant and the same was challaned after investigation. Thereafter, learned trial Court after full dress trial acquitted the accused vide judgment dated 12.09.2022, with following observation:-

"From the bare perusal of above provision of law, it is clear that the law has empowered the Magistrate to direct the complainant/informer to award compensation to accused, who dragged by him in a false and frivolous criminal case. Although this provision appears in chapter XX of Cr.P.C but the same is general in nature like certain other provisions, in the said chapter like sections 245-A and 248 and in the same way, the provision under section 250 Cr.P.C and the same are made available to Sessions Court in appropriate cases. In this respect reliance is placed upon a case of the Honourable Supreme Court of Pakistan reported as Muhammad Khan v. The State and others (PLD 2007 Supreme Court-5) wherein the Apex Court has ordered to pay compensation under the provision of Section 250 Cr.P.C. The guidance is also taken from a recent case law (Sajjad Ali v. VIIIth Additional District and Sessions Judge Karachi East and 8 others) reported at 2021 PCr.LJ-341). By concluding the discussion I am of the view that Section 250 Cr.P.C is a means of restorative justice and in appropriate cases; compensation under Section 250 Cr.P.C can be awarded by all criminal Courts to counterweight the suffering of accused and to discourage the false, frivolous and vexatious cases. So in exercise of powers conferred by above provisions, let show cause to pay compensation be issued to complainant for bringing the law into motion and brought this false and vexatious case on the board of this Court which shall be decided separately".

1. Subsequently, the reply on notice issued to the applicant/complainant by learned trial Judge, was found to be unsatisfactory which resulted in passing of the impugned order, as detailed above.

2. The question arises here as to whether the Sessions/Additional Sessions Judge(s) have powers to invoke the jurisdiction in terms of Section 250 Cr.P.C. For ready reference Section 250 Cr.P.C is reproduced hereunder;

"250. False, frivolous or vexatious accusations: (1) If in any case instituted upon complaint or upon information given to a police-officer or to a Magistrate, one or more persons is or are accused before Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.

(2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding twenty-five thousand rupees or, if the Magistrate is a Magistrate Of the Third Class not exceeding two thousand and five hundred rupees as he may determine be paid, by such complainant or informant to the accused or to each or any of them.

(2-A) The compensation payable under subsection (2) shall be recoverable as an arrear of land-revenue.

(2-B) When any person is imprisoned under subsection (2-A) the provisions of Sections 68 and 69 the Pakistan Penal Code shall, so far as may be, apply.

(2-C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:

Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(3) A complainant or informant who has been ordered under subsection (2) by a Magistrate of the Second or Third Class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees may appeal from the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.

(4) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under subsection (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.

1. The bare reading of above provision of law reflects that only the Magistrate in Magisterial trial is empowered to invoke Section 250 Cr.P.C and not the other Courts. Moreover, the perusal of case of Muhammad Khan v. The State and others (PLD 2007 SC 5) relied upon by learned trial Judge, reflects that the Honourable Supreme Court of Pakistan while awarding compensation has invoked the jurisdiction under Section 250 Cr.P.C read with Article 187 of Constitution of Islamic Republic of Pakistan, 1973 and the aforesaid Article empowers the Honourable Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. Therefore, the Honourable Supreme Court can pass such orders for awarding compensation and not the other Courts except the Magistrate in Magisterial trial as has mentioned in Section 250 Cr.P.C.

2025 P Cr. L J 737

[Sindh]

Before Muhammad Karim Khan Agha, J

Dost Muhammad---Apellant

Versus

The State---Respondent

Criminal Appeal No. 800 of 2022, decided on 10th October, 2024.

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

----Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Taking illegal gratification by corrupt or illegal means, common intention, criminal misconduct---Appreciation of evidence---Delay of 21 days in lodging the FIR adequately explained---Accused was charged for taking illegal gratification for the issuance of medical certificate required for recruitment---Admittedly the FIR was lodged after a delay of 21 days---However, said delay had been explained by stating that when the complainant went to collect his medical certificate a bribe of Rs. 50,000 was demanded from him by the appellant---Since that amount was not paid by the appellant as it he could not afford such payment over a period of time negotiations took place between the complainant and the appellant which led to the bribe amount being reduced to Rs. 20,000---However, the complainant could still not afford that amount and hence on the advice of a friend he went to the Anti Corruption Establishment and lodged his FIR---Thus, delay in lodging the FIR, based on the particular facts and circumstances of the case was not found to be fatal to the prosecution case as the delay in lodging the FIR had been adequately explained---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however sentence of accused under S.161, P.P.C, was too harsh keeping in view the fact that the bribe only amounted to Rs. 20,000 which was relatively minor and as such his sentence under S.161 P.P.C was reduced from RI for 2 years to RI for one year---Appeal was dismissed except modification in sentence in respect of the appellant's conviction under S.161 P.P.C.

Abdul Rasool v. The State 1996 PCr.LJ 1350; Abdul Karim Kmbhar v. The State 2021 YLR Note 10; Bashir Ahmad v. the State 2011 SCMR 634 and Rashid Ahmad v. The State 1974 SCMR 249 ref.

Muhammad Nadeem alias Deemi v. The State 20211 SCMR 872 rel.

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

----Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Taking illegal gratification by corrupt or illegal means, common intention, criminal misconduct---Appreciation of evidence---Ocular account proved---Accused was charged for taking illegal gratification for the issuance of medical certificate required for recruitment---According to the evidence of the complainant, who was an eye-witness to the bribery on 20.10.2019 he was supposed to receive medical certificate (MC) for the purpose of joining the police however the appellant told him that there was an issue regarding his medical certificate and demanded Rs. 50,000 from him to issue his Medical Certificate---After a week complainant was unable to arrange the bribe of Rs. 50,000 whereupon the appellant gave him a few more days and told him to at least arrange Rs. 20,000 otherwise he would not get his Medical Certificate---After discussing the matter with his cousin he approached the Anti Corruption Establishment on 05.11.19 where he submitted his complaint and his S.154 Cr.P.C statement was also recorded---Next day FIR was lodged on his complaint by official who then brought the Judicial Magistrate---Judicial Magistrate reviewed his FIR and called two witnesses---Officials of Anti Corruption Establishment prepared mashirnama of handing over tainted amount of Rs. 20,000 (4 ´ 5,000) to him which he took into his possession---Thereafter complainant, his witnesses, Judicial Magistrate and trap team went to police hospital garden---Trap party took up positions whilst complainant entered the room of the appellant and told him that he had arranged Rs. 20,000 with great difficulty and handed over the bribe to him in return for his Medical Certificate---Complainant then left the room and signaled the trap party who entered the room---Official of Anti Corruption Establishment carried out the search and recovered from the appellant the tainted notes which matched the numbers on the notes in the earlier mashirnama---When confronted by Judicial Magistrate as to how the appellant had the tainted notes, he had no explanation---Eye-witness evidence was not materially improved on from his S.154 Cr.P.C statement---Complainant was not related to the appellant or any other witness and had no ill will or enmity towards the appellant which would give him a reason to implicate him in a false case---Complainant knew the appellant and handed the bribe to him so the identity of the appellant was not in doubt---Eye-witness gave his evidence in straightforward manner and was not dented during lengthy cross-examination---As such, evidence of this eye-witness was found to be trust worthy, reliable and confidence inspiring and believable---Evidence of eye-witness was corroborated/supported in all material respects by three witnesses save in respect of their presence in the room when the tainted money was handed over by the eye-witness/complainant to the appellant---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however sentence of accused under S.161, P.P.C, was too harsh keeping in view the fact that the bribe only amounted to Rs. 20,000 which was relatively minor and as such his sentence under S.161, P.P.C, was reduced from RI for 2 years to RI for one year---Appeal was dismissed in the above terms.

Shah Jehan v. The State PLD 2004 SC 35 rel.

(c) Criminal trial---

----Sole witness, evidence of---Scope---Accused could be convicted on the evidence of a sole eye-witness provided the evidence is trust worthy reliable and confidence inspiring---What is of significance is the quality of the evidence and not its quantity.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq 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 Qasim Shahzad v. The State 2023 SCMR 117 rel.

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

----Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Taking illegal gratification by corrupt or illegal means, common intention, criminal misconduct---Appreciation of evidence---Recovery of tainted notes from the possession of accused established---Accused was charged for taking illegal gratification for the issuance of medical certificate required for recruitment---Tainted notes recovered from the appellant matched the currency numbers of the notes given to the complainant as per mashirnama before the trap and those recovered notes from the appellant bore the same currency numbers after their recovery from the appellant as per mashirnama prepared after the arrest of the appellant---Mashirnama of recovery was made at the Police Station as during the search a commotion and scuffle broke out between the entrapment team and the other Police Officers present at the hospital and hence the appellant had to be quickly moved to the Police Station---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, sentence of accused under S.161, P.P.C was too harsh keeping in view the fact that the bribe only amounted to Rs. 20,000 which was relatively minor and as such his sentence under S.161, P.P.C was reduced from RI for 2 years to RI for one year---Appeal was dismissed in the above terms.

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

----Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Taking illegal gratification by corrupt or illegal means, common intention, criminal misconduct---Appreciation of evidence---Police witnesses, evidence of---Scope---Accused was charged for taking illegal gratification for the issuance of medical certificate required for recruitment---Record showed that there was no ill will or enmity between the police and the appellant and as such the police had no reason to falsely implicate the appellant in the case by foisting the tainted money on him---Under these circumstances the evidence of police witnesses was as good as any other witness---Thus, Court believed the evidence of the Investigating Officer which was not dented during lengthy cross-examination and whose evidence tied in with the prosecution case---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however it was found that sentence of accused under S.161, P.P.C, was too harsh keeping in view the fact that the bribe only amounted to Rs. 20,000 which was relatively minor and as such his sentence under S.161, P.P.C was reduced from RI for 2 years to RI for one year---Appeal was dismissed, in the above terms.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Taking illegal gratification by corrupt or illegal means, common intention, criminal misconduct---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Accused was charged for taking illegal gratification for the issuance of medical certificate required for recruitment---All the witnesses were consistent in their evidence---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 appellant---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the complainant trying to obtain his Medical Certificate to the appellant demanding a bribe for the release of the Medical Certificate to the bribe money being given to the appellant and recovered from the appellant during a trap laid by the Anti Corruption Establishment along with a Judicial Magistrate---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, sentence of accused under S.161, P.P.C, was too harsh keeping in view the fact that the bribe only amounted to Rs. 20,000 which was relatively minor and as such his sentence under S.161 P.P.C was reduced from RI for 2 years to RI for one year---Appeal was dismissed, in the above terms.

Zakir Khan v. State 1995 SCMR 1793; Khadim Hussain v. the State PLD 2010 SC 669 and Maskeen Ullah and another v. The State and another 2023 SCMR 1568 rel.

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

----Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5---Taking illegal gratification by corrupt or illegal means, common intention, criminal misconduct---Appreciation of evidence---Sentence, quantum of---Relatively minor amount of bribe demanded---Accused was charged for taking illegal gratification for the issuance of medical certificate required for recruitment---Prosecution had proved its case against the appellant beyond a reasonable doubt for the offences for which he had been convicted and the Court maintained his conviction and sentence in respect of the offence under S.5(2) of Prevention of Corruption Act, 1947---However sentence of accused under S.161, P.P.C was too harsh keeping in view the fact that the bribe only amounted to Rs. 20,000 which was relatively minor and as such his sentence under S.161, P.P.C was reduced from RI for 2 years to RI for one year---Appeal against conviction was dismissed in the above terms.

Khan Zaman Khattak for Appellant.

Mumtaz Ali Shah, Assistant Prosecutor General Sindh for the State.

Date of hearing: 3rd October, 2024.

Judgment

Muhammad Karim Khan Agha, J.---Appellant Dost Muhammad has filed this appeal against his conviction whereby he was convicted and sentenced by the Special Judge Anti-Corruption (Provincial), Karachi vide Judgment dated 22.12.2022 is under:-

Accused Dost Muhammad son of Haqi Muhammad is convicted under section 245(2), Cr.P.C and sentenced as per following provisions mentioned in below chart.

| | | | | --- | --- | --- | | 1. | Section 161 P.P.C. | Accused Dost Muhamamd is sentenced to suffer R.I. for two years and to pay fine of Rs. 50,000/-. In case of default in payment of fine amount, he shall further serve S.I for two months more. | | 2. | Section 5(2) Prevention of Corruption Act, 1947 | Accused Dost Muhammad is sentenced to suffer R.I. for one year and to pay fine of Rs. 10,000/-. In case of default in payment of fine amount, he shall further serve S.I for one month more |

The sentences shall run concurrently.The benefit of Section 382-B, Cr.P.C is given to the accused.

1. The brief facts as narrated in the FIR are that, this case was registered under section 11(1), read with 11(2) and (3) of ACE Rules 1993, as a consequence of complaint filed by Almas Rabbani son of Ghulam Rabbani, against organized corrupt practices and bribe taking by Head Constable Dost Muhammad, working at Police Hospital Karachi, on behalf of Tayyab Umrani, posted as Medical Superintendent, Police Hospital, Karachi. They were found involved into rent seeking to the proportion of organized extortion from new recruits from Police Department under various recruitment policies and rules. From a number of new aspirants, who would be selected In Police Department they had taken bribe and in lieu of issuing Medical Fitness, required for joining the Police department. Ultimately, as per details it was complained that complainant was considered for appointment as Constable in Karachi Range (KPO) against Shaheed Quota. He approached the Medical Superintendent, Police Hospital, Karachi for issuance of medical certificate required for job. However, he faced dillydallying. Where, he met with Dost Muhammad, who demanded Rs.50,000/- as bribe for issuing Medical Certificate. He requested him that he cannot pay such above amount, but he shouted at him by saying if, he did not pay the above amount, the Medical Officer Mr. Tayyab Umrani, would not issue his Medical Certificate. He personally met Tayyab Umrani Medical Superintendent Police Hospital Karachi for redressal of his grievances but he did not redress his grievances. Finally, Dost Muhammad agreed to get him certificate in lieu of Rs.20,000/- as bribe. Though, he could not pay him bribe, yet he had no other option but to pay him, illegally demanded extortion. He would not pay the bribe, accused would raise objections. In the similar fashion, he has been seeking bribe from other recruits, as well. It's an organized racket engaged in corrupt practice.

2. After usual investigation the matter was challaned and the appellant was sent up to face trial. He pleaded not guilty and claimed his trial.

3. In order to prove its case the prosecution examined four (04) witnesses, who exhibited numerous documents and other items. Then statement of accused under Section 342 Cr.P.C was recorded whereby he denied the allegations levelled against him and claimed his false implication. He did not examine himself of oath and called one DW in support of his defence case.

4. After hearing the parties and appreciating the evidence on record the trial court convicted and sentenced the appellant as stated earlier in this Judgment. Hence 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, therefore, the same is not reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case by the complainant; that the FIR was lodged after a delay of 21 days; that no one heard the conversation between the appellant and the complainant in the appellant's room when the bribe was allegedly paid; that the mashirnarma of arrest and recovery was not prepared on the spot and that for any or all 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 placed reliance on the cases of Abdul Rasool v. The State (1996 PCr.LJ 1350), Abdul Karim Kmbhar v. The State (2021 YLR Note 10) and Bashir Ahmad v. The State (2011 SCMR 634).

7. Learned Assistant Prosecutor General Sindh, after going through the entire evidence of the prosecution witnesses as well as other record of the case supported the impugned judgment. In particular, he contended that the appellant was arrested on the spot and caught red handed with the bribe money; that the eye-witness who gave evidence was trust worthy and confidence inspiring and his evidence should be believed and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions he placed reliance on the cases of Shah Jehan v. The State (PLD 2004 SC 35) and Rashid Ahmad v. The State (1974 SCMR 249).

8. I have heard the arguments of the learned counsel for the appellant and learned APG and have gone through the entire evidence which has been read out by the 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.

9. After my reassessment of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(a) Admittedly the FIR was lodged after a delay of 21 days. I however, have found that this delay has been explained. This is because when the complainant went to collect his medical certificate a bribe of Rs. 50,000 was demanded from him by the appellant. Since this amount was not paid by the appellant as if he could not afford such payment over a period of time negotiations took place between the complainant and the appellant which lead to the bribe amount being reduced to RS20,000 however the complainant could still not afford this and hence on the advice of a friend he went to the ACE and lodged his FIR. Thus, I do not find the delay in lodging the FIR based on the particular facts and circumstances of this case to be fatal to the prosecution case as the delay in lodging the FIR has been adequately explained. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) The appellant is named in the FIR with the specific role of demanding a bribe on behalf of Dr.Tayyab Usmani MS at Police hospital garden in return for giving the applicant a medical certificate as required by the applicant to join the police force.

(c) After lodgment of the FIR according to the evidence of IO PW 4 Rato Khan of the ACE and the evidence of PW 3 Shafaquat Hussain who was a magistrate a plan was put in place to trap the appellant whilst he received the bribe from the complainant.

(d) According to the evidence of the complainant. PW 1 Almas Rabani who is an eye-witness to the bribery on 20.10.2019 he was supposed to receive medical certificate (MC) for the purpose of joining the police however the appellant told him there was an issue regarding his medical certificate and demanded Rs. 50,000 for him to issue his MC. He told the appellant that he was a poor man and the son of a shaheed and could not pay the amount demanded. The issue was that his domicle was of Punjab Province. After a week he was unable to arrange the bribe of Rs. 50,000 whereupon the appellant gave him a few days more and told him to at least arrange Rs. 20,000 otherwise he would not get his MC. On 02.11.19 he told the appellant that he could not arrange the bribe of 20,000 and he was in effect told to arrange the amount or else his MC would not be issued. After discussing the matter with his cousin he approached the ACE on 05.11.19 where he submitted his complaint. His section 154 Cr.P.C statement was also recorded. The next day an FIR was lodged on his complaint by PW 4 Rato Khan who then brought PW 3 Shafqat Hussain who was a judicial magistrate. The judicial magistrate reviewed his FIR and asked him to call two witnesses. He called PW Atwanulah and Amanullah. The officials of ACE prepared mashirmana of handing over tainted amount of Rs. 20,000 (4 X 5,000) to him which he took into his possession. Thereafter he, his witnesses, judicial magistrate and trap team went along to police hospital garden Karachi. The trap party took up positions whilst he entered the room of the appellant and told him that he had arranged the Rs. 20,000 with great difficulty and handed over the bribe to him in return for his MC. He then left the room and signaled the trap party who entered the room. PW 3 Rato Khan carried out the search and recovered from the appellant the tainted notes which matched the numbers on the notes in the earlier mashirnama. When confronted by PW 3 Shaquat Hussain as to how the appellant had the tainted notes he had no explanation.

This eye-witnesses evidence was not materially improved on from his section 154, Cr.P.C statement. He is not related to the appellant or any other witness and had no ill will or enmity towards the appellant which would give him a reason to implicate him in a false case. He knew the appellant and handed the bribe to him so the identity of the appellant is not in doubt. The eye-witness gave his evidence in a straightforward manner and was not dented during a lengthy cross-examination. As such I find the evidence of this eye-witness to be trust worthy, reliable and confidence inspiring and believe the same. In this regard reliance is placed on the Supreme Court case of Shah Jehan (Supra)

It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his evidence to be trust worthy reliable and confidence inspiring. 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), Muhammad Ismail v. The State (2017 SCMR 713), and Qasim Shahzad v. State (2023 SCMR 117). 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-witnesses to be of good quality, trust worthy, reliable and confidence inspiring and as such I believe the same and rely on it.

(e) The evidence of this eye-witness is corroborated/supported in all material respects by PW 2 Atwanullah, PW 3 Shafat Hussain the judicial magistrate and PW 4 Rato Khan save in respect of their presence in the room when the tainted money was handed over by the eye-witness /complainant to the appellant and their not hearing the conversation between the eye-witness/ complainant and the appellant which in any event has been rendered irrelevant by the Supreme Court in Shah Jehan's case (Supra) keeping in view the particular facts and circumstances in this case. Indeed, the evidence of PW 2 Atwanullah supports the complainant's FIR that organized corruption was taking place at police hospital garden in which the appellant was very much involved and that the complainant was not the only victim.

Having believed the evidence of the eye-witness which is discussed above I turn to consider the corroborative/supportive evidence whilst keeping in view that it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under;

"Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for any corroboration"

(f) The tainted notes recovered from the appellant matched the currency numbers of the notes given to the complainant as per mashirnama before the trap and these recovered notes from the appellant bore the same currency numbers after their recovery from the appellant as per mashirnama prepared after the arrest of the appellant. The mashirnama of recovery was made at the PS as during the search a commotion and scuffle broke out between the entrapment team and the other police officers present at the hospital and hence the appellant had to be quickly moved to the PS.

(g) That there was no ill will or enmity between the police and the appellant and as such the police had no reason to falsely implicate the appellant in this case for example by foisting the tainted money on him. 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 Mushtaq Ahmed v. The State (2020 SCMR 4174). Thus, I believe the evidence of the IO who was not dented during a lengthy cross-examination and whose evidence ties in with the prosecution case.

(h) That the tainted notes as mentioned above were recovered from the appellant.

(i) The motive for demand of the bribe was that the complainant's domicile was from the Punjab so the appellant could hold up the complainants MC on this ground.

(j) That all the PW's 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 placedon the cases of Zakir Khan v. State (1995 SCMR 1793), Khadim Hussain v. The State (PLD 2010 SC 669) and Maskeen Ullah and another v. The State and another (2023 SCMR 1568). The evidence of the PWs provides a believable corroborated unbroken chain of events from the complainant trying to obtain his MC to the appellant demanding a bribe for the release of the MC to the bribe money being given to the appellant and recovered from the appellant during a trap laid by the ACE along with a judicial magistrate.

(k) The fact that no one was prepared to act as an independent mashir has almost become a judicially recognized fact as these days no member of the public (unless they are related to the deceased or the complainant) wishes to associate themselves which such like cases and run the risk of being called to give evidence.

(l) The fact that the MS Dr.Tayytib Umrani who was supposed to have also been involved in this corruption was let off is of help to the appellant because no recovery was made from him and there was no other evidence against him whereas the case of the appellant is on a completely different footing for the reasons mentioned above.

2025 P Cr. L J 756

[Sindh (Larkana Bench)]

Before Abdul Mobeen Lakho and Khadim Hussain Soomro, JJ

Ahmed Khan---Apellant

Versus

The State---Respondent

Criminal Appeal No. D-02 of 2024, decided on 23rd September, 2024.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Contradiction in the quantity of recovered substance---Prosecution case was that 2940 grams charas was recovered from the possession of the accused---Prosecution examined the eye-witness/Mashir and complainant, and they deposed with one voice that on 09.08.2023, they had apprehended the appellant along with the 06 large slabs charas, which was 2940 grams---According to the Chemical Examiner's report dated 30-08-2023, seven large slabs of Charas were received---Prosecution witnesses attempted to substantiate their claim by asserting that there were originally six large slabs of charas, with one slab broken down, resulting in seven slabs---However, the Chemical Examiner's Report did not corroborate the prosecution's claims regarding the quantity of charas involved---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Safe custody of the parcels of the contraband not proved---Prosecution case was that 2940 grams charas was recovered from the possession of the accused---Alleged case property was recovered from the appellant on 09.08.2023, and on the same day, it was deposited at Malkhana, and such entry in Register No. 19 was made---Examination of the said entry lacked a clear indication of the time, date, month, and year of its recording, thereby giving rise to doubt regarding its authenticity---According to the Chemical Examiner Report dated 30-08-2023, the case property was received on 16-08-2023, along with a memorandum [ Road Certificate] No 77 dated 10-08-2023---Perusal of Memorandum No. 77, revealed that the case property was handed over to Police Constable on 10-08-2023 for depositing the same to the Chemical Examiner, but the same was deposited on 16-08-2023---Prosecution failed to justify where and with whom the case property was kept during that interval period---Prosecution was under an obligation to prove a chain of safe custody for sample parcels, which commenced from the seizure of narcotics by the police, including their dispatch to the Malkhana and subsequent transmission to the testing laboratory---Hence, the prosecution failed to establish safe custody and transmission of the parcels---Appeal against conviction was allowed, in circumstances.

Said Wazir and another v. The State and others 2023 SCMR 1144 and Muhammad Hazir v. The State 2023 SCMR 986 ref.

Muhammad Aslam v. The State 2011 SCMR 820 and Qaiser and others v. The State 2022 SCMR 1641 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---To create and grant the benefit of doubt to an accused, it is not required for the prosecution to exhibit multiple deficiencies or numerous circumstances inducing doubt---Single or minimal doubt, if deemed reasonable, is adequate to warrant the benefit of the doubt for the accused, not as an act of grace or concession but as a matter of legal entitlement.

Tajamal Hussain v. The State 2022 SCMR 1567; Sajjad Hussain v. The State 2022 SCMR 1540; Abdul Ghafoor v. The State 2022 SCMR 1527; Kashif Ali v. The State 2022 SCMR 1515: Muhammad Ashraf v. The State 2022 SCMR 1328; Khalid Mehmood v. The State 2022 SCMR 1148; Muhammad Semi Ullah, v. The State 2022 SCMR 998; Bashir Muhammad Khan v. The State 2022 SCMR 986; The State v. Ahmed Omer Sheikh 2021 SCMR 873; Najaf Ali Shah v. The State 2021 SCMR 736; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabber v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State PLD 2019 SC 64; Hashim Qasim v. The State 2317 SCMR 986; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Zaman v. The: State 2014 SCMR 749; Khalid Mehmood v. The State 2011 SCMR 664; Muhammad Akram v. The State 2009 SCMR 230, Faheern Ahmed Farooqui v. The State 2008 SCMR 1572; Ghulam Qadir v. The State 2008 SCMR 1221 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Safdar Ali Ghouri for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

Date of hearing: 16th September, 2024.

Judgment

Khadim Hussain Soomro, J.---Through this Criminal Appeal, the Appellant has assailed judgment dated 06.01.2024, passed by learned 1st Additional Sessions/MCTC Special Judge for C.N.S. Cases, Kandhkot in Special C.N.S. Case No.37 of 2023, emanating from Crime No. 42/2023, registered at P..S., Guddu under section 9(c) CNSA, 1997, whereby the Appellant was convicted and sentenced to nine years R.1 and fine of Rs.80,000/; in case of default in payment of fine, he shall undergo S.I. for two years more. The benefit of section 382-B, Cr.P.C. was also extended to the Appellant.

1. Briefly, the facts of the case are that on 09.08.2023, S.I.P. Manzoor Ahmed Laghari received spy information that one person had Charas in a black colour shopping bag available near R.D-17, a crash machine; consequently, the complainant, along with his subordinate staff, namely A.S.I. Mukhtiar Ali, PC Noor Hassan, PC Shaiq, PC Abdul Ghaffar, and D.P.C. Qudrat Ali left the Police Station towards the pointed place under daily diary No.50 at 1550. At 1600 hours, the police party reached the pointed place where they saw that one person was standing on the northern side of the road with a black colour shopping bag seeing the police party tried to escape, but he was apprehended along with the shopping bag. The complainant opened the same and found Charas in the shape of 06 large slabs. Subsequently, the complainant made A.S.I. Mukhtiar and PC Moor Hassan as mashirs, the accused disclosed his name to be Ahmed Khan, son of Muhammad Siddique alias Sadique Bhayo; a body search of the accused was conducted whereupon 05 currency notes of rupees one hundred denomination were recovered. Then, the complainant weighed the Charas on digital balance, which became 2940 grams; the said Charas was sealed on the spot, and such mashirnama of arrest and recovery was prepared in the presence of the above mashirs and their signatures were obtained on it. The police party returned to the Police Station 'along with the accused and case property where instant FIR under section 9(c) of the CNSA, 1997 was lodged on behalf of the State.

2. After completion of formalities, a formal charge was framed against the Appellants/accused, to which he pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined the eye-witness/Mashir A.S.I. Mukhtiar Ali Choliyani at Ex.3, he produced mashirnama of arrest and recovery, mashirnama of site inspection at Ex:3/A and B, dispatch rider PC Shaique Ali Mazari was examined at Ex.4, he produced P.S. Copy of R C No.77 at Ex:4/A, complainant S.H.O. Manzoor Ahmed Laghari was examined at Ex:5, P.W. the incharge Malkhana W.H.C. Muhammad Hassan Bhangwar was examined at Ex:6, he produced P.S. Copy of entry No:21 of Register No:19 at Ex.6/A, IO/SIP Muhammad Iqbal Jakhrani was examined at Ex.7. he produced D.D. entries Nos.19, 21, P.S. Copy of permission letter, P.S. Copy of D.D. entries Nos.26, 20, Chemical report at Ex:7/A to 7/E, respectively. Thereafter learned ADPP closed the side of the prosecution vide Statement at Ex.8. The statement of the accused as provided under section 342 Cr.P.C. was re-recorded Ex.9, wherein he neither opted to get him examined on oath nor any witness in his defence.

3. The learned trial court found the Appellant guilty of the offence, with which he was charged, convicted and sentenced as mentioned aoove, which is assailed through this Criminal Appeal.

4. Learned counsel for the Appellant/accused has contended that the impugned judgment passed by the learned trial Court is illegal, unlawful and based on mala fide; that there is a delay of seven days in sending the sealed samples of contraband material to the chemical examiner; that as per Rule 14 of C.N.S. Analysts Rules, the sealed samples are to be sent within 72 hours; that the chemical examiner received the case property from P.O Shafiq, Buckle No.4496 whereas the prosecution examined P.S. Shaeq having different buckle bearing No.4495. Hence, P.O Shafiq and P.O Shaeq are two distinct individuals. Finally, learned counsel for the Appellant/accused prays that the impugned judgment may be set aside. In support of his contentions, learned counsel for the Appellant has relied upon the case law reported as 2023 SCMR 1144 (Said Wazir and another v. The State and others) and 2023 SCMR 986 (Muhammad Hazir v. The State).

5. Learned Additional Prosecutor General, Sindh, appearing for the State, has contended that the appellant/accused was nominated in the FlR and was identified by the police Officials, the 'alleged recovery: Of contraband material took place from his exclusive possession; that the contraband material was sealed on the spot and deposited in Malkhana, whereafter the same was sent to the chemical examiner, and the report was received in positive, that there is no ill will on the part of the police officials to implicate the appellant/accused;. therefore, he prayed that the conviction and sentence awarded to the Appellant may be maintained.

6. We have given due consideration to the arguments advanced by the learned counsel for the Appellant accused as well as the learned Additional Prosecutor General Sindh and have gone through the material available on record.

7. The prosecution examined the eye-witness/Mashir A.S.I. Mukhtiar Ali Choliyani and complainant S.H.O. Manzoor Ahmed Laghari deposed with one voice that on 09.08.2023, they had apprehended the Appellant along with the 06 large slabs Charas, which was of 2940 grams. According to the chemical examiner's report dated 30-08-2023, seven large slabs of Charas were received. The prosecution witnesses attempted to substantiate their claim by asserting that there were originally six large slabs of Charas, with one slab broken down, resulting in seven slabs. However, the chemical examiner's report does not corroborate the prosecution's claims regarding the quantity of Charas involved.

8. It is worth noting here that the alleged case property was recovered from the Appellant on 09.08.2023, and on the same day, it was deposited to malkhana, and such entry in Register No. 19 was made. The examination of the aforementioned entry lacks a clear indication of the time, date, month, and year of its recording, thereby giving rise to doubt regarding its authenticity. According to the Chemical Examiner Report dated 30-08-2023, the case property was received on 16-08-2023, along with a memorandum [ Road Certificate] No. 77 dated 10-08-2023. The perusal of Memorandum No. 77, reveals that the case property was handed over to P.O Shafiq/ Shaeeq on 1008-2023 for depositing the same to the chemical examiner, but the same was deposited on 16-08-2023. The prosecution failed to justify where and with whom the case property was keptduring this interval period. The prosecution is under an obligation to prove a chain of safe custody for sample parcels, which commences from the seizure of narcotics by the police, including their dispatch to the Malkhana and subsequent transmission to the testing o laboratory. Hence, the prosecution failed to establish safe custody and transmission. This chain of safe custody and transmission is crucial, forming the foundation of the C.N.S. Act of 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001.

2025 P Cr. L J 786

[Sindh]

Before Adnan-ul-Karim Memon, J

Imtiaz Ali and another---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. 1376 and 1377 of 2024, decided on 15th July, 2024.

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

----Ss. 497, 75 & 87---Penal Code (XLV of 1860), S.381-A---Qanun-e-Shahadat (10 of 1984), Arts.38, 39 & 40---Theft of car and other motor vehicles----Post arrest bail, grant of---Extra-judicial confession made before the police---Admissibility---Further inquiry---Neither the petitioners were nominated in the FIR, nor warrants had been issued against them under Ss.75/87, Cr. P.C. that they had been arrested upon their statements in police custody; even after their arrest in the above cases, they were not forwarded to the Magistrate for their confessional statement to the effect that they were the persons who committed theft of the subject vehicles from the place of the incident as reported by both the complainant for the reason that confession before the police was not admissible in evidence under the law---Recovery of the stolen vehicles had been effected on the pointation of the petitioners and its evidentiary value was yet to be determined by the Trial Court after recording evidence as the prosecution claimed that there was CCTV footage---Wider net was thrown by the police to involve the petitioners on the pretext that they were professional car snatchers---Case of the petitioners did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail in such offences not falling within the prohibitory clause was a rule and refusal thereof was an except---Petitioners were admitted to post-arrest bail, in circumstances.

Tanveer v. The State and another PLD 2017 SC 733 rel.

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

----Ss. 497 & 110---Penal Code (XLV of 1860), S.381-A---Qanun-e-Shahadat (10 of 1984), Arts.38, 39 & 40---Theft of car and other motor vehicles----Post arrest bail, grant of---Extra-judicial confession made before the police---Admissibility---Registration of other FIRs---Expressions "habit" and "habitually"---Scope---Extra-judicial confession of the accused was recorded in police custody, thus, was not admissible under Arts.38 & 39 of the Qanun-e-Shahadat, 1984---Before conviction every accused is presumed to be innocent---Prosecution failed to establish that the petitioners were ever convicted in any case registered against them, therefore, they could not be refused bail merely on such ground---Bald allegations that a person by habit or habitually commits the offences highlighted in S.110 Cr.P.C. are not sufficient to proceed under that provision, rather the allegations must substantially be supported by cogent evidence---Such powers could not be exercised as a tool of oppression against innocent, poor and helpless people---Petitioners were admitted to post-arrest but, in circumstances.

Jafar alias Jafri v. The State 2012 SCMR 606 rel.

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

----S.221(7)---Penal Code (XLV of 1860), S.75---Previous conviction in serious crimes---Scope---Concept of enhancement of sentence---Scope---Section 75 P.P.C. makes the accused of an offense mentioned in Chapter XII or XVII of the P.P.C. liable to enhanced punishment if he has earlier been convicted of the offenses mentioned in the said Chapters---Section 221(7) of Cr.P.C., therefore, provides that if the accused is previously convicted of any offense and because of such previous conviction is liable to enhance punishment and it is intended to prove such previous conviction affects the punishment which the court may think fit to award for the subsequent offense---The fact, date and place of previous conviction shall be stated in the charge and if such statement has been omitted in the charge, the court may add it any time before the sentence is passed and the onus to prove the previous conviction of an accused lies on the prosecution, thus, it is the duty of the Investigating Officer to investigate the previous conviction of the person accused of an offense mentioned in Chapter XII or XVII of P.P.C., to collect evidence regarding the previous conviction of the accused, and produce before the Trial Court---Section 221(7) Cr.P.C. further caters to a situation where the fact of previous conviction has been omitted in the charge; the fact of a previous conviction can subsequently be added to the charge at any time before the sentence is passed---Duty of the Investigating Officer is, therefore, onerous, who has to work round the clock to follow and fetch the record of previous conviction(s) of a person accused of an offense mentioned in S.75, P.P.C.

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

----Ss. 497 & 498---Grant of post arrest and pre-arrest bails ---Consideration of merits of case---Scope---While granting post and pre-arrest bails, the merits of the case can be touched upon by the court.

Miran Bux v. The State PLD 1989 SC 347; Sajid Hussain alias Joji v. The State PLD 2021 SC 898; Javed Iqbal v. The State PLD 2022 SCMR 1424 and Muhammad Ijaz v. The State 2022 SCMR 1271 rel.

Rameez Raja Solangi for Applicant (in both the bail applications).

Khadim Hussain, APG, along with I.O Anwar Hussain of PSAVLC and Abdul Nabi of PS Jauharabad for the State.

Complainant in person (in Bail Application No. 1377 of 2024).

Nemo for Complainant (in Bail Application No. 1376 of 2024).

Date of hearing: 15th July, 2024.

Order

Adnan-ul-Karim Memon, J.---Through these bail applications under Section 497 Cr.P.C., the applicants Imtiaz Ali and Raj Kumar have sought admission to post-arrest bail in FIR Nos.182 and 183 of 2024, registered under Section 381-A P.P.C. at Police Station Joharabad, Karachi and this was the reason to take up both the bail applications for disposal as the both arise out of the subject crimes and common questions of law as well as facts are involved.

1. The earlier bail plea of the applicants has been declined by the learned Additional Sessions Judge v. (Central) Karachi vide orders dated 14.06.2024 in Cr. Bail Applications Nos. 1428 and 1429 of 2024 on the premise that during the interrogation of crime No.521/2024 under section 397/34 P.P.C. of PS Karachi Industrial Area and FIR No. 182/20234 of PS Taimoria under section 381-A, P.P.C. applicants/accused disclosed commission of crime that they along with their other accomplices stolen the subject vehicles as disclosed in both the FIRs, and recovery was made from them.

2. It is argued that there was an inordinate delay of five days approximately in lodging of FIR without explanation, the police falsely implicated the above-said case to the applicant/accused persons, and it is argued that police kidnapped both the accused/applicants from their houses and demanded Rs. 10,00,000/- from their families. Learned counsel contended that there is extra-judicial confession; and that no physical feature of the applicants/accused has been mentioned in the FIR. It is contended that the alleged offence does not come within the prohibitory clause of section 497 Cr.P.C. and in such case, grant of bail is a rule and rejection is an exception Learned counsel prayed for allowing the bail applications.

3. It has vehemently been argued by the learned Additional Prosecutor General, Sindh that the applicants have also been involved in other criminal cases, and if bail is granted to them, they would jump the bail bond and would attempt to tamper the prosecution evidence. He next contended that if any incriminatory material related to the case is recovered or any fact is discovered in consequence of the information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Article 40 of the Qanun-e- Shahadat Order, 1984 because then the presumption would be towards its truthfulness. Since the disclosure of the accused Ismail has been followed by the recovery of some stolen property as well as the discovery of new facts of selling the gold ornaments including the present applicant/accused Habibullah, which earlier was not known. He argued that Article 40, of Qanun-e-Shahadat, provides that when any fact is revealed in consequence of information received from any accused in the custody of a police officer, such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered, may be proved. The information supplied by the applicants under Article 40 ibid relating to incriminating articles is admissible therefore, they are not entitled to any indulgence in the matter of bail.

4. I, however, have not felt persuaded to agree with the learned Additional Prosecutor General, Sindh in this regard for the reasons that in my humble opinion, the extra-judicial confession of the accused was recorded in police custody, thus not admissible under Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. Besides, before conviction, it is presumed that every accused is innocent. Insofar as the case in hand is concerned, despite repeated queries by this Court, learned Additional Prosecutor General, Sindh has failed to establish that the applicants were ever convicted in any case registered against them, therefore, they cannot be refused bail merely on the ground that certain other criminal cases have been registered against them. In this regard, I am supported by the case of Jafar alias Jafri v. The State reported in 2012 SCMR 606. The expressions "habit" and "habitually" used in section 110 have not been defined in the Cr.P.C. The prime object of the said provision is ensuring the good behavior of the person liable to proceedings thereunder to serve the larger public interest i.e. safety and security. The authorities are, therefore, expected to exercise powers under section 110 Cr.P.C. with great caution. Bald allegations that a person by habit or habitually commits the offenses highlighted in the said provision are not sufficient to proceed under section 110 Cr.P.C. The allegation must substantially be supported by cogent evidence. Such powers, therefore, cannot be exercised as a tool of oppression against innocent, poor, and helpless people. Section 75 of the Pakistan Penal Code, 1860 (the "P.P.C.") makes the accused of an offense mentioned in Chapter XII or XVII of the P.P.C. liable to enhanced punishment if he has earlier been convicted of the offenses mentioned in the said chapters.

5. Section 221(7) of Cr.P.C., therefore, provides if the accused is previously convicted of any offense and because of such previous conviction is liable to enhanced punishment and it is intended to prove such previous conviction affects the punishment which the court may think fit to award for the subsequent offense, the fact, date and place of previous conviction shall be stated in the charge and if such statement has been omitted in the charge, the court may add it any time before the sentence is passed. The onus to prove the previous conviction of an accused lies on the prosecution. It is, therefore, the duty of the Investigating Officer to investigate the previous conviction of the person accused of an offense mentioned in Chapter XII or XVII of P.P.C., to collect evidence regarding the previous conviction of the accused, and produce before the trial court. Section 221(7) of Cr.P.C. further caters to a situation where the fact of previous conviction has been omitted in the charge. The fact of a previous conviction can subsequently be added to the charge at any time before the sentence is passed. The duty of the Investigating Officer is, therefore, onerous. He has to work round the clock to follow and fetch the record of previous conviction(s) of a person accused of an offense mentioned in section 75 P.P.C..

2025 P Cr. L J 837

[Sindh]

Before Shamsuddin Abbasi, J

Muhammad Sohail---Applicant

Versus

Jamshed Mahmood Raza alias Jamiand 2 others---Respondents

Criminal Revision Application No. 206 of 2023, decided on 26th August, 2024.

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

----Arts. 46-A, 78-A & 164---Criminal Procedure Code (V of 1898), S. 540---USB as a modern device---Evidentiary value---Scope---Application under S.540, Cr.P.C for bringing evidence on record---Powers of Trial Court---Scope---Trial Court rejected application of accused seeking a USB to be exhibited in evidence---USB is a modern device generated through an automated system, hence the same can be exhibited in evidence as provided in Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984 ('the Order 1984')---Article 164 of the Order 1984provides wide powers to the Courts to make use of evidence generated by modern devices and techniques---Arts.46-A and 78-A of the Order, 1984 as well as provisions of Electronic Transactions Ordinance have smoothened the procedure to receive such evidence subject to certain restrictions / limitations---If USB is allowed to be exhibited in evidence , the respondent has a right to cross-examination as a litmus test of the truthfulness of what is deposed on oath in examination-in-chief---Court should not summarily dismiss an application under S.540, Cr. P.C. merely on the ground that it is found just to fulfill a lacuna in the case or that it was a belated application---Courts are duty bound to decide the case on merits after affording an opportunity to the parties to place on record all available evidence with them---Section 540, Cr.P.C. empowers a Court to summon all relevant evidence and place it on record at any stage of the trial if it is necessary to decide the controversy between the parties---Trial Court was not justified in declining the request of the applicant for bringing on record the USB as an evidence while dismissing application under S.540, Cr.P.C---High Court set-aside impugned order and allowed the application filed under S.540, Cr.P.C, for bringing on record the USB as an evidence---Criminal Revision was allowed accordingly.

Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675; Ali Raza v. State 2019 SCMR 1982 and Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160 ref.

Mohsin Khan for Applicant.

Asif Ali Khawaja for Respondent No. 1.

Mumtaz Ali Shah, Asst. P.G. for Respondents Nos. 2 and 3.

Date of hearing: 21st August, 2024.

Order

Shamsuddin Abbasi, J.---Muhammad Sohail Javed, applicant, is a director by profession, filed a direct complaint under Section 200 Cr.P.C. against respondent No.1 seeking cognizance of offence against respondent No.1 of publishing multiple times a letter on his facebook page "Jami Moor" from an anonymous girl about an incident of her sexual assault at the hands of applicant, which insinuated the applicant to the general public and specially people from the field of show business. It is alleged that all averments made in the publication are false and concocted and do not even bear an iota of truth, but a figment of respondent No.1's slanted and trite imagination with malicious purpose to defame and disgrace the applicant.

1. After holding preliminary inquiry in the matter, the learned Magistrate sent up the matter to the Court of Session. The Court took cognizance of the matter, supplied copies under Section 265-C, Cr.P.C. and framed a charge against respondent No.1. The applicant appeared and recorded part of his examination-in-chief, which was reserved and thereafter instead of recording his further examination-in-chief, he has filed an application under Section 540, Cr.P.C. seeking permission to exhibit USB containing a video of the incident in evidence and sent the same to Forensic Division for examination and report.

2. The learned trial Court (Additional Sessions Judge-X, Karachi South) after hearing the parties respective counsel dismissed the application vide order dated 20.09.2023. The applicant being aggrieved by the order of dismissal preferred the present Criminal Revision Application and prayed for following relief(s):-

(a) That this Honourable Court may be pleased to set aside the impugned order dated 20.09.2023, passed by the learned X AD and S] South in Complaint No.498/2019 and direct the trial Court to allow the applicant to produce the USB containing the video of the incident as stated in paragraph 8 of the complaint and send the USB to the forensic agency for their report, transcript, and/or analysis, etc.

(b) Any other or further order/relief which this Hon'ble Court may deem fit and proper in the interest of justice".

1. It is mainly contended on behalf of the applicant that respondent No.1 published a letter on his facebook page containing defamatory remarks against applicant multiple times, which not only has affected the reputation of the applicant seriously but also created hatred and ridicule in the eyes of the public. It is next submitted that the material that was published on facebook page has been deleted but a video is available in the USB, which is essential to arrive at a just and fair adjudication of the matter. It is also submitted that the learned trial Court has erred in law by not allowing the applicant to exhibit the USB, Inasmuch as, the whole case of the applicant revolves around the judicial determination of crucial evidence lying in the USB and once the USB is allowed to be placed on record, the offence committed by the respondent No.1 will be proved, and if the same is not permitted to be exhibited, then the applicant will suffer adversely. The learned counsel while summing up his submissions has submitted that a Court of law could not have refused to exhibit per se admissible evidence, which is essential to arrive at a just and fair decision in the matter. In support of his submission, he has placed reliance on the cases of Ch. Muhammad Anwar v. Judge Accountability Court No. IV, Lahore and 2 others (2021 MLD 648) and Taimoor Mirza v. Maliha Hussain and others (2020 CLC 1029).

2. The learned counsel for the respondent No.1 and the learned Assistant Prosecutor General while supporting the impugned order have submitted that the learned trial Court has rightly declined applicant's prayer with lawful authority and jurisdiction observing that the applicant never disclosed about the USB containing video of the incident and he has only brought this fact to the notice of Court at a belated stage while recording his evidence, therefore, this revising being misconceived, merits dismissal.

3. I have given my anxious consideration to the submissions of respective parties' and perused the entire material available before me with their able assistance.

4. The controversy revolves around a USB which was sought to be exhibited in evidence. The case of the applicant is that the USB contained a video of alleged incident which would be a sufficient proof to substantiate his case, hence the same is necessary to arrive at a just and fair decision in the matter. On the other hand, the contention of the respondent No.1 is that the applicant did not disclose about availability of evidence in USB and intend to exhibit the same only at a belated stage while recording his examination-in-chief. The learned trial Court turned down the applicant's request for bringing on record the USB and dismissed the application under Section 540, Cr.P.C. observing that if such an evidence was available with the applicant he should have brought the same on record at earlier stage, hence at belated stage the same cannot be exhibited in evidence.

5. A USB is a modern device generated through an automated system, hence the same can be exhibited in evidence as provided in Articles 46-A and 164 of Qanun-e-Shahadat Order, 1984. For the sake of convenience, the same are reproduced below:-

2025 P Cr. L J 853

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

Niaz Muhammad Jalbani and another---Appellants

Versus

The State through Chairman NAB and another---Respondents

Criminal Accountability Appeal No. D-42 and Criminal Accountability Acquittal Appeal No. D-74 of 2017, decided on 27th October, 2022.

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

----Ss. 9 & 10---Corruption and corrupt practices---Appreciation of evidence---Prosecution case was that the accused were involved in misuse of their authority and misappropriation of government funds---From the perusal of evidence of the prosecution witnesses, it seemed that out of eight witnesses, in the evidence of four witnesses, nowhere the name of accused/appellant was found mentioned, whereas two witnesses had made certain statements/admissions which were against the prosecution version and went in favour of the accused---In such view of the matter, it could safely be observed that the said two witnesses had not supported the case of prosecution so far as the allegations against appellant was concerned, rather their evidence supported the version of the accused /appellant---So far as the evidence of SubAccountant was concerned, although in his evidence he had stated that level one was used by Divisional Accounts Officer and accused as IDs were allotted to them by the Accountant General into the SAP System, however, in his cross-examination said witness had admitted in clear terms that firstly the said ID used to be applied by the office of DAO and thereafter the Divisional Accounts Officer used to apply his ID, meaning thereby that said ID was also in the knowledge and use of other persons working in the office of DAO---In such view of the matter, appellant alone, without inclusion of others, could not be held to be responsible for using the said ID for any illegal purpose as alleged---Said witness had also improved/exaggerated his statement recorded under S.161, Cr.P.C. as he had himself admitted in his cross-examination that he did not state in his S.161 Cr.P.C. statement regarding the usage of level one by the then Divisional Accounts Officers whereas such fact had been stated by him in his deposition, which was fatal to the prosecution case---So far as the evidence of Investigating Officer was concerned, neither he was an eye-witness, nor was he working in the Highway Division but his evidence was based on the information given by the officials of Highway Division or bank employees---Furthermore, the trial Court while dealing with the case of acquitted accused had disbelieved the evidence of that witness and had not given any weight to the same---In that view of the matter, once the prosecution evidence was disbelieved with respect to a co-accused then it could not be relied upon with regard to the other co-accused---Appeal against conviction was allowed, in circumstances.

Altaf Ahmed v. National Accountability Bureau 2020 MLD 1676 and State through Prosecutor General Accountability, NAB v. Ghulam Mustafa Randhawa and another 2018 PCr.LJ 797 ref.

Muhammad Asif v. The State 2017 SCMR 486 and Umar Farooque v. The State 2006 SCMR 1605 rel.

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

----Ss. 9 & 10---Corruption and corrupt practices---Appreciation of evidence---Rule of consistency---Prosecution case was that the accused were involved in misuse of their authority and misappropriation of government funds---Record showed that the trial Court while convicting the present appellant, on the basis of same set of the evidence, had acquitted one accused who was working as Senior Clerk in the Highway Division at the relevant time and against whom the allegation was that he had misappropriated government funds and his liability was calculated to be more than the liability of present accused/appellant---Rule of consistency demanded that if the trial Court had disbelieved the evidence in respect of a co-accused, the same could not be relied upon for convicting other accused---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 and Umar Farooque v. State 2006 SCMR 1605 rel.

(c) Criminal trial---

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

Wazir Mohammad v. The State 1992 SCMR 1134; Shamoon alias Shamma v. The State 1995 SCMR 1377; Mansoorul-Haq v. Government of Pakistan PLD 2008 SC 166; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Rehmat v. State PLD 1977 SC 515 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance, creating a reasonable doubt in a prudent mind about the guilt of an accused, the accused would be entitled to its benefit as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 722 rel.

Ali Nawaz Ghanghro and Javed Ahmed Soomro for Appellant (in Criminal Accountability Appeal No. D-42 of 2017).

Mujeeb-ur-Rehman Soomro and Bahawaluddin Shaikh, Special Prosecutors NAB for the State/NAB.

Mumtaz Ali Panhwar for Appellant (in Criminal Accountability Acquittal Appeal No. D-74 of 2017).

Dates of hearing: 8th September and 6th October, 2022.

Judgment

Muhammad Saleem Jessar, J.---By this single judgment we propose to dispose of above said two appeals as both appeals arise out of same judgment being impugned herein.

1. By means of Cr. Accountability Appeal No.D-42/2017 appellant Niaz Muhammad Jalbani son of Muhammad Bux has assailed his conviction and sentences awarded to him vide Judgment dated 31.03.2017 passed by learned Accountability Court Sukkur in Reference No. 20/2015 under sections 9 and 10 of National Accountability Ordinance 1999, whereby accused/appellant was convicted under section 10(a) of NAO, 1999 and sentenced to undergo R.I for 05 years and to pay fine of Rs.908,647/- (Rupees Nine Lacs Eight Thousand Six Hundred and Forty Seven Only) in terms of section 11 of NAO, 1999 and in case of default, the fine was ordered to be recovered as arrears of land revenue in terms of section 33-E of Ordinance ibid. It was also ordered by the trial court that since the accused Niaz Muhammad Jalbani has been convicted, as such he shall forthwith seize to hold public office, if any, held by him and the accused was further disqualified for a period of 10 years to be reckoned from the date he is released after his serving out the sentence from seeking or from being elected, chosen, appointed or nominated as member or representative of any public body or any authority or local authority or in service in Pakistan or any province as provided under section 15(a) of NAO, 1999. The accused was also prohibited to apply for or to be granted or allowed any financial institution in the public sector for a period of 10 years from the date of conviction as provided under section 15(b) of NAO, 1999. However, benefit under Section 382-B Cr.P.C was extended to him.

2. By the same judgment, accused Azizullah son of Abdullah Panhwar was acquitted by the trial court while extending him benefit of doubt. Through above said Cr. Accountability Acquittal Appeal No. D-74 of 2017, The State through Chairman National Accountability Bureau has challenged his acquittal.

3. Brief facts of the case, as disclosed in the reference, are that a pseudonymous complaint was received against accused No.1 Abdul Naeem Soomro and others, as shown in the reference. Accused Abdul Naeem Soomro was subsequently discharged through Plea Bargain. It was alleged that said accused and other officials of Highways Division Kambar-Shahdadkot and government contractors, as shown in the reference, in connivance with each other, were involved in misuse of their authority and misappropriation of Government funds.

4. Upon receiving complaint and verification report, an inquiry was authorized by DG NAB Sukkur vide letter No. 720012/IW/COT/T-2/NABSK/2015/41 dated 1st April 2015 and during inquiry accused No. 3, 6, 8 and 10 (as shown in the reference) applied for VR for an amount of Rs.1,33,55,505/-. It is further stated that competent authority rejected the VR on the ground that it was made a practice that Government officials used to opt for VR after committing embezzlement of huge amount. Subsequently, inquiry was converted into an investigation vide letter No.720012/IW/CO/NAB Sukkur/2015/382 dated 25th June, 2015 and after filing of reference, all the accused persons entered into Plea Bargain and they were discharged through PB except accused Niaz Muhammad Jalbani and Azizullah Panhwar, whereas two other accused namely Qurbnan Ali and Muhammad Saleem were shown as absconders. During investigation, it revealed that accused Nos.1 to 14 (as shown in the reference) including absconding accused persons and accused persons discharged through PB were involved in misuse of their authority and misappropriation of funds amounting to Rs.15.913 Million of Highway Division, District Kamber-Shahdadkot.

5. A formal charge against accused persons was framed at Ex. 10, to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Ex. 11 to Ex. 13.

6. In order to prove its case, prosecution led evidence and examined PW-1 Abdul Jabbar Shah at Ex.14, who produced seizure memo in all 3 leaves as Ex.14/1 along with the vouchers in all 50 leaves. PW-2 Muhammad Saleem, Accounts Clerk was examined at Ex, 15, who produced seizure memo in all 18 leaves along with the record which is in all 250 leaves as Ex.15/1.PW-3 Amir Hussain, Bank Manager was examined at Ex. 16, who produced seizure memo along with the bank document as Ex. 16/1 in all 56 leaves and one leave of seizure memo. PW-4, Sajjad Ali was examined at Ex.17. PW-5, Qudratullah, Bank Manager, UBL was examined at Ex.18, who produced the seizure memo along with the attested P.S. copies of bank documents in all 22 leaves as Ex. 18/1. PW-6, Abdul Muqeem XEN, Highway Division was examined at Ex. 19, who produced documents as Ex.19/2 in two leaves. PW-7 Abdul Hafeez, Manager, Bank Al Islami was examined at Ex.20, who produced seizure memo along with 128 leaves of Bank record as Ex.20/1. PW-8 Kashif Noor, Investigating Officer, NAB Sukkur was examined at Ex.21, who produced authorization letter of the inquiry as Ex.21/1, Original complaint along with P.S. copies of its enclosures as Ex.21/2 and other relevant documents as Ex.21/3 to Ex. 21/9.

7. Accused Niaz Muhammad Jalbani and accused Azizullah Panhwar in their statements under Section 342 Cr.P.C at Exs.24 and 25 respectively denied allegations levelled against them by prosecution and professed innocence. However, neither they got examined themselves on Oath, as provided under Section 340(2) Cr.P.C, nor produced any witness in their defense.

8. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing learned Advocates for the accused persons as well as Special Prosecutor NAB, trial Court, vide impugned judgment, convicted and sentenced appellant Niaz Muhammad Jalbani, as stated above while other accused namely Azizullah son of Abdullah Panhwar was acquitted of the charge. Appellant/convict Niaz Muhammad Jalbani has challenged his conviction and sentence by filing above Criminal Accountability Appeal while The State through Chairman NAB has filed above noted Cr. Accountability Acquittal Appeal against the acquittal of accused Azizullah son of Abdullah.

9. We have heard the arguments advanced by learned counsel for the parties and have perused the material made available before us on the record.

10. Learned Special Prosecutor NAB submitted that respondent Azizullah Panhwar in Crl. Accountability Acq. Appeal was working in the department as senior clerk; therefore, alleged vouchers were prepared and duly signed by him; hence, he was responsible for the misappropriation as well as misuse of his authority, as such the trial Court has wrongly acquitted him of the charges. However, he could not controvert the fact that besides respondent Azizullah Panhwar, one Ahmed Raza and Riaz Hussain were also working as senior clerks; however, Ahmed Raza was not arrayed as accused or witness in this case. However, he insisted that trial Court has wrongly acquitted the respondent of the charges. He; therefore, submitted that by allowing the appeal against his acquittal, respondent Azizullah Panhwar may be convicted for alleged offences. He placed reliance on the cases reported in 2020 MLD 1676 (Altaf Ahmed v. National Accountability Bureau) and 2018 PCr.LJ 797 (State through Prosecutor-General Accountability, NAB v. Ghulam Mustafa Randhawa and another).

11. Learned counsel for appellant Niaz Muhammad Jalbani submitted that appellant was Divisional Accounts Officer and his duty as well as role in the office was to forward the vouchers, so also the bills duly submitted before him by the subordinates and consequently the same were to be approved by the Executive Engineer. They further submitted that nowhere prosecution has produced any single document, showing the transfer of funds from Government account to his personal account and even no evidence was produced, showing that his existing properties were bevond his means or the income. They further added that some of the vouchers have been adduced pertaining to the year 2011; though he was posted as Divisional Accounts Officer in the month of April 2013. As far as bills or vouchers are concerned, learned counsel submitted that he was not Sanctioning Authority nor was competent to visit the construction work, purportedly assigned to the contractors and even measurement was made and the bills were prepared and recommended by the Assistant Engineer and the Engineer was required to submit the bills as per directions of Executive Engineer. They further pointed out that out of eight (08) PWs, PWs Nos. 1, 2, 3, 5 and 7 have not deposed against appellant Niaz Muhammad Jalbani; therefore, entire evidence adduced by the prosecution against him has become doubtful. In the circumstances, he should have been acquitted by the trial Court but the trial court has wrongly convicted him. They further referred to page No.467 of the paper book, where the witness has clearly deposed in cross-examination that the vouchers printed over form No.28 either were forged, fictitious or bogus and most of these forms did not contain original signature of accused Niaz Muhammad Jalbani. The witness has also admitted that the vouchers adduced in evidence were of the year 2012. They further submitted that prosecution has adduced secondary evidence as most of the documents were Photostats copies; therefore, secondary evidence has no evidentiary value and conviction cannot be based on the same. They placed reliance on the cases reported as 2021 SCMR 408 (Utility Store Corporation of Pakistan, through Managing Director Islamabad and another v. The State and others), 2016 PCr.LJ 643 (Mansoor Ahmed v. The State), 2021 PCr.LJ 99 (Masood Alam Niazi and others v. The State, through Chairman NAB), 2022 PCr.LJ Note 67 (Ali Gul and another v. The State), and AIR 1994 SC 591. Learned counsel for the appellant have also referred the Sindh Delegation of Powers under the F.R, and the Powers of Re-appropriation Rules, 1962 and submitted that appellant was not Sanctioning Authority to sanction the bills or issue cheque at his own; therefore, finding of trial Court that the appellant allegedly had issued cheques in favour of the contractors, was immaterial and cannot be made basis for maintaining the conviction against him. Learned counsel further submitted that on same set of evidence co-accused Azizullah Panhwar was acquitted while appellant has been convicted which is contrary to the well settled principle enunciated by the Superior Courts. Learned counsel finally submitted that by allowing instant appeal, appellant Niaz Muhammad Jalbani may be acquitted of the charges.

12. In the first instance, we would like to deal with Crl. Accountability Appeal No.D-42 of 2017 filed by accused Niaz Muhammad Jalbani.

13. PW-1 Abdul Jabbar Shah, who was Head Clerk, Highway Division, Kambar-Shahdadkot at the relevant time, in his entire evidence has not nominated appellant Niaz Muhammad Jalbani in the commission of alleged offence, rather he has named other accused persons who were discharged on the basis of plea bargain. It would be appropriate to reproduce herein the relevant portions from his evidence:

"...The vouchers which I produced were prepared by accused Riaz Hussain Kalhoro who was the Store Keeper and Tender Clerk in Highway Division Kamber Shahdadkot. The vouchers which I produced bear the initials of accused Riaz Hussain Kalhoro. The vouchers which I produced also bear the signatures of Divisional Accountant, Altaf Hussain Memon and XEN Abdul Naeem Soomro..... This illegal payment was made by accused Abdul Naeeem Soomro, Altaf Hussain Memon and Riaz Hussain Kalhoro......I know the accused Azizullah and Niaz Hussain present in the court but they are not involved in the vouchers which I produced in court."

1. PW-2, Mohammad Saleem, Accounts Clerk, has deposed that above said Abdul Jabbar has produced record/relevant documents to the I.O in his presence.

2. PW-3 Amir Hussain, who was Bank Manager of SUMMIT Bank, Larkana has deposed to the extent of opening the bank accounts by accused Qurban Ali and Mohammad Saleem wherein the son of acquitted accused Azizullah namely Asif Ali was shown as their next of kin. In his entire evidence, this witness has not named accused Niaz Muhammad Jalbani.

3. PW-4 Sajjad Ali deposed in his evidence that at the relevant time he was working as Sub-Accountant in Highway Division. According to him, his function while posted in DAO Kambar-Shahdadkot was to subtract from the budget of Highway Division Kambar-Shahdadkot, the amount bills which were used to be placed before him by Division Accounts Officer Highway Division Kambar-Shahdadkot. He further deposed that he used to punch the bills of Highway Division into the SAP system on the zero level and thereafter level one was used by Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani as IDs were allotted to them directly by the Accountant General Sindh into the SAP System. He further deposed that the contractors were paid through the bills for Highway Division Kambar-Shahdadkot during the tenures of the then Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani. In his cross-examination, he admitted, "it is correct to suggest that I have not stated in my 161 Cr.P.C. statement regarding the usage of level one by the then divisional accounts officers namely Altaf Hussain and Niaz Jalbani. I do not know that as to who used to prepare the bill of highway division Qamber Shahdadkot. It is correct to suggest that firstly the ID is applied by the office of DAO and thereafter the divisional accounts officer used to apply his ID.

4. PW-5 Qudruttalh Shah, who was Manager of UBL, Jealous Bazar, Larkana at the relevant time, has only produced the bank record of two contractors namely Munawar Ali and Riaz Ahmed before the IO.

5. PW-6 Abdul Muqeem, who was Chief Engineer, Works and Service Department, Karachi at the relevant time has deposed in his evidence about the procedure relating to payment in respect of contracts regarding the work of different categories and payment of security deposit. He; however, admitted in his cross-examination, "It is correct to suggest that the vouchers of 28 are forged and fictitious. Majority of these forms do not contain the original signatures of accused Niaz.... It is correct to suggest that accused Niaz taken over the charge as Divisional Accounts Officer in 2013. It is correct to suggest that form 28 vouchers are of 2012".

6. PW-7 Abdul Hafeez, who was Hub Operation Manager, Bank Al-Islami Latifabad Branch, Hyderabad, at the relevant time, has only produced the bank record of five contractors namely Mumtaz Ali, Riaz Ahmed, Junaid Ahmed, Nabi Bux and Maqbool Ahmed before the I.O.

7. PW-8 Kashif Noor, Deputy Director/ Investigating Officer NAB Sukkur in his evidence has stated in detail about the entire investigation conducted by him in instant case. His evidence is not direct but is based on the information given to him by other prosecution witnesses.

8. From the perusal of evidence of the prosecution witnesses, as narrated above, it seems that out of eight witnesses, in the evidence of four witnesses viz. PWs Nos.2, 3, 5, and 7, nowhere the name of accused/appellant Niaz Muhammad Jalbani finds mention, whereas PW No.1 namely Abdul Jabbar and PW No.6 namely Abdul Muqeem have made certain statements / admissions which are against the prosecution version and go in favour of the accused.

9. PW-1 namely Abdul Jabbar, who was working as Head Clerk in Highway Division, Kambar-Shahdadkot at the relevant time, does not say anything about accused Niaz Muhammad Jalbani, rather he has nominated three other accused namely Riaz Hussain Kalhoro, Abdul Naeem Soomro and Altaf Hussain Memon, who were discharged on the basis of plea bargain. According to him, the illegal payment was made to the contractors by accused Abdul Naeem Soomro, Altaf Hussain Memon and Riaz Hussain Kalhoro. He has not named the present appellant/accused Niaz Muhammad Jalbani. He has clearly stated that the vouchers, which he had produced during his evidence, contained the signatures of accused Altaf Hussain Memon and Abdul Naeem Soomro. So far as the preparation of the vouchers in question is concerned, in this context, he has named accused Riaz Hussain Kalhoro who was Store Keeper and Tender Clerk in Highway Division Kamber-Shahdadkot, the said vouchers also bear the initials of said Riaz Hussain. Not only this, but he has specifically exonerated appellant Niaz Muhammad Jalbani by deposing, "I know the accused Azizullah and Niaz Hussain present in the court but they are not involved in the vouchers which I produced in court."

10. Likewise, PW-6 Abdul Muqeem, who was Chief Engineer, Works and Service Department, Karachi has categorically stated in his cross-examination that the forms 28 vouchers in question were forged and fictitious. He further deposed that majority of the said forms did not contain the original signatures of accused Niaz. He also deposed that accused Niaz Muhammad Jalbani had taken over the charge in the year 2013 as Divisional Accounts Officer, whereas the said form 28 vouchers related to the year 2012.

11. In this view of the matter, it can safely be observed that the above said two witnesses i.e. PW-1 Abdul Jabbar and PW-6 Abdul Muqeem have not supported the case of prosecution so far as the allegations against appellant Niaz Muhammad Jalbani is concerned. Rather their evidence supports the version of the accused/appellant.

12. So far as the evidence of PW-4 Sajjad Ali, who was working as Sub-Accountant in Highway Division at the relevant time, is concerned, although in his evidence he has stated that level one was used by Divisional Accounts Officer namely Altaf Hussain and Niaz Jalbnani as IDs were allotted to them by the Accountant General Sindh into the SAP System. However, in his cross-examination this witness has admitted in clear terms that firstly the said ID was used to be applied by the office of DAO and thereafter the divisional accounts officer used to apply his ID, meaning thereby that said ID was also being in the knowledge and used of other persons working in the office of DAO. In this view of the matter, appellant Niaz Muhammad Jalbani alone, without inclusion of others, cannot be held to be responsible for using the said ID for any illegal purpose as alleged. This witness has also improved/exaggerated his statement recorded under section 161, Cr.P.C. as he has himself admitted in his cross-examination that he did not state in his 161 Cr.P.C. statement regarding the usage of level one by the then Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani, whereas such fact has been stated by him in his deposition, which is also fatal to the prosecution case.

13. So far as the evidence of PW-Kashif Noor, I.O, is concerned, it may be observed that neither he was an eye-witness, nor was he working in the Highway Division but his evidence is based on the information given by the officials of Highway Division or bank employees. Furthermore, the trial court while dealing with the case of acquitted accused Azizullah, has disbelieved the evidence of this witness and has not given any weight to the same. In this view of the matter, suffice it to refer to the well settled principle of law that once the prosecution evidence is disbelieved with respect to a co-accused then it cannot be relied upon with regard to the other co-accused. In this connection, reference may be made to the cases reported as Muhammad Asif v. The State (2017 SCMR 486) and Umar Farooque v. State (2006 SCMR 1605).

14. It is also worthwhile to point out at this juncture that the trial court while convicting the present appellant, on the basis of same set of the evidence, has acquitted accused Azizullah who was working as Senior Clerk in the Highway Division at the relevant time and against whom the allegation was that he has misappropriated government funds and his liability was calculated to be more than the liability of accused Niaz Muhammad Jalbani. Needless to emphasize here that rule of consistency demands that if the trial court has disbelieved the evidence in respect of a co-accused, the same cannot be relied upon for convicting other accused. However, before referring to the dictum laid down by the Superior Courts on this point, it would be appropriate to examine the evidence of prosecution witnesses with a view to see as to whether aforesaid acquitted accused has also been assigned any role in the commission of alleged offence or not? The allegations against acquitted accused Azizullah Panhwar is that he in connivance with other accused persons prepared security deposit vouchers and illegal payment in fake schemes for payment to the contractors who are accused Nos.7 to 14 as shown in the reference amounting to Rs. 12,763,210/-. It is further alleged that he also appended his initial on the security deposit vouchers which formed basis of payment to contractor which resulted loss to government exchequer. It is also alleged that he facilitated the fake contractors in withdrawing the amount of security deposit. For that purpose he also used his son namely Asif who according to the evidence of PW-3 Amir Hussain Bank Manager, Summit Larkana was shown as next of kin of accused Qurban Ali and Muhammad Saleem who both were Government Contractors, in the documents at the time of opening their Bank accounts. PW-3 Amir Hussain also deposed that accused Azizullah also accompanied accused/contractor Qurban Ali in the bank at the time of opening his bank account. The relevant portion from the evidence of PW-3 Amir Hussain is reproduced as under:

"One Asif All son of Azizullah is shown as next of kin in the bank account of accused Qurban Ali and the supporting documents viz. bill of electricity is in the name of Azizullah in the bank account of accused Qurban Ali..... The next of kin shown in the bank account of Mohammad Saleem is shown as Asif Ali son of Azizullah and the bill of Sui Gas is provided by accused Mohammad Saleem is of Azizullah with his bank documents".

1. The fact that the said Asif Ali, son of accused Azizullah, was used by accused Azizullah himself in order to facilitate illegal payment to contractors, is also supported by the fact that at the time of opening bank account of the contractor, accused Azizullah was accompanying them in the bank, which is evident from the admission of PW-3 Amir Hussain, to the effect, "Accused Azizullah himself came to the bank and produced the SSGC Bill. I stated that account holder viz. accused Qurban Ali and Azizullah both came to the bank together".

2. From above, it is clear that even acquitted accused namely Azizullah was also implicated by the prosecution witnesses. On the point of 'rule of consistency,' it would be advantageous to refer to a judgment of Honourable Supreme Court passed in the case of Muhammad Asif v. The State reported in (2017 SCMR 486), wherein it was held as under:-

"It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."

1. In another case reported as Umar Farooque v. State (2006 SCMR 1605), Honourable Supreme Court has held as under:

"On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."

1. Yet in another case reported as Muhammad Akram v. The State (2012 SCMR 440), the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge, acquitted the accused. In view of this legal position, applicant/convict/accused should also have been extended same benefit as given to the acquitted accused which was not done.

2. It is now well settled that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. 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. In the instant case, prosecution does not seem to have proved the allegations against the accused/appellant by producing unimpeachable evidence; thus, there creates doubts in the prosecution version. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court as under:

"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

1. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377), it was held by Honourable Supreme Court as under:

"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal."

1. No doubt, section 14(c) of National Accountability Ordinance, 1999, provides that in any trial of an offence punishable under clause (v) of subsection (a) of section 9 of the N.A.O, 1999, the fact that the accused person or any other person on his behalf, is guilty of the offence of corruption and corrupt practices and his conviction, therefore, shall not be invalid by reason only that it is based solely on such a presumption, meaning thereby that the prosecution was not under obligation to prove the case against an accused and it was obligatory upon the accused to disprove the charges levelled against him. However, such presumption is subject to the condition that the prosecution shall first make out a "reasonable" case against the accused, which is apparent from the language used in the proviso to Section 14 which says;

"Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of subsection (a) of section 9."

1. Hence, notwithstanding the presumption contained in section 14(c) of the N.A.O., 1999, the initial burden of proof always rests on the prosecution. The prosecution is not absolved, in any circumstances, from proving its case against the accused beyond shadow of reasonable doubt and burden shifts to the accused only after the prosecution has succeeded in establishing the presumption of guilt against the accused.

2. In this context, reliance may be placed on the case reported as Mansoorul-Haq v. Government of Pakistan (PLD 2008 SC 166), wherein it was held as under:

"The National Accountability Bureau Ordinance, 1999, no doubt is a special law and prosecution having the advantage of the provision of section 14(a) of the Ordinance may not under heavy burden to discharge the onus of proving the charge as the Court may on discharge of initial burden of proving prima facie case by the prosecution raise a presumption of guilt but in the light of concept of criminal administration of justice, the prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under NAB Ordinance as the burden of proof is only shifted on the person facing charge if the prosecution succeeds in making out a reasonable case by discharging the initial burden of proving the charge. The provision of section 14(d) of the said Ordinance envisages that burden of proof is only shifted to the accused to rebut the allegations if the prosecution succeeds in establishing the preliminary facts to raise the presumption of guilt".

1. The Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) having examined the provisions of section 14(d) of the Ordinance held as under:-

"Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgation the same notwithstanding the phraseology used therein. The above provisions do not constitute a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of section 14(d):

(1) The prosecution shall first make out reasonable case against the accused charged under section 9(a)(vi) and (vii) of the National Accountability Bureau Ordinance, 1999.

(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt".

1. Similarly, in the case of Pir Mazharul-Haq v. The State (PLD 2005 SC 63), the Hon'ble Supreme Court has held that section 14 of the Ordinance cannot be used to undermine the well-established rule of law that burden to prove guilt of the accused initially is on the prosecution and it never shifts to the accused unless discharged through cogent and reliable evidence. The section does not affect the onus of proving the guilt of an accused which always rests on the prosecution and does not cast any burden on the accused to prove that no crime was committed, nor does it warrant the conclusion that if anything remains unexplained, then the accused to be held guilty. The relevant relevant extract from said judgment is reproduced herein below:-

"In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed."

1. In the case reported as Rehmat v. State (PLD 1977 SC 515), it was held as under:-

"Needless to emphasize that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."

1. It is also now well settled principle of law that for extending benefit doubt, presence of multiple circumstances creating doubt is not necessary and if there is a single circumstance, creating a reasonable doubt in prudent mind about the guilt of an accused, the accused will be entitled to its benefit as a matter of right. In the present case, there are various admissions in the evidence of the prosecution witnesses which create doubts and put dents in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only single circumstance which creates doubt in the prosecution story. In this connection, reference may be made to the case of Muhammad Mansha v. The State reported in 2018 SCMR 722, wherein the Honourable Supreme Court held as under:

"Needless to mention here that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt, if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervaiz v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)".

1. In view of above, we are of the opinion that prosecution has not been able to prove its case against appellant Niaz Mohammad Jalbani beyond shadow of reasonable doubt, as such he deserves to be acquitted of the charges levelled by the prosecution against him.

2. Now, adverting to the case of acquitted accused Azizzullah Panhwar against whom Cr. Accountability Acquittal Appeal No.D-74 of 2017 has been filed by the State. It seems that the role assigned to him by the prosecution is that he in connivance with other accused persons prepared security deposit vouchers and illegal payment in fake schemes for payment to the contractors amounting to Rs. 12,763,210/-. It is further alleged that he also appended his initial on the security deposit vouchers which formed basis of payment to contractors which resulted loss to government exchequer. It is also alleged that he facilitated the fake contractors in withdrawing the amount of security deposit.

3. From bare perusal of the evidence of prosecution witnesses, it seems that out of eight witnesses, PWs No. 1, 2, 4, 5 and 7 have not deposed anything against the respondent (acquitted accused). So far as the evidence of PW No.3 namely Amir Hussain, Bank Manager, Summit Bank, Larkana, where accused/ contractors namely Qurban and Muhammad Saleem got opened their bank accounts allegedly with the facilitation of accused Azizullah is concerned, it seems that in his cross-examination this witness has made certain admissions/contradictions which are fatal to the prosecution case and go in favour of the accused. In his examination-in-chief, he deposed that while opening the bank account, accused Qurban Ali and Muhammad Saleem produced Sui Gas Bills pertaining to accused Azizullah, whereas in his cross-examination he admitted that in his 161 Cr.P.C. statement he had mentioned that said two accused had produced electricity bills and not Sui Gas Bills. He further admitted that there was no written consent of accused Azizullah for production of gas bill in the bank account of accused Qurban and Muhammad Saleem and that he did not obtain the copy of CNIC of accused Azizullah for opening of the bank account of aforesaid two accused persons. He has also admitted in his cross-examination that there was no bank account of accused Azizullah in said bank.

4. So far as evidence of PW-6 Abdul Muqeem, who was Chief Engineer, Works and Services Department, Karachi, is concerned, in his examination-in-chief in the first instance he deposed, "The Divisional accounts were Altaf Memon and one Jalbani by caste whereas the senior clerk was Azizullah Panhwar and Raza", however, in the same breath he contradicted himself by again saying, "Riaz Kalhoro and Ahmed Raza", meaning thereby that along with Raza (Ahmed Raza) the other senior clerk was Riaz Kalhoro and not accused Azizullah. In addition, in his cross-examination he made following admissions:

"It is incorrect to suggest that there are no signatures of accused Azizullah in the documents which I produced but his initials are in the documents. Voluntarily say that there is no need of the signature of accused Azizullah in the documents which I produced. It is correct to suggest that I was not posted in District Kamber Shahdadkot at the time of incident. I am not expert to verify the signatures. I do not know that accused Azizullah was neither a bill clerk nor budget clerk and nor a account clerk at the time of incident. It is correct to suggest that there is no concerned of accused Azizullah Panhwar with the transaction of amount involved in this reference. It is correct to suggest that accused Azizullah had not put his initial in my presence. It is correct to suggest that at the time of incident the DDO powers were not with accused Azizullah".

1. As per his own admission he was not posted at District Kamber-Shahdadkot at the time of incident. In this view of the matter, as to how it was possible for him to recognize the initial in the vouchers in question to be that of accused Azizullah. If he would have worked in District Kamber-Shahdadkot where the accused Azizullah was working then it could be presumed that he might have conversant and familiar with his signature /initial but when as per his own admission he was not posted in District Kamber-Shahdadkot then how could he verify the initials in question to be that of accused Azizullah.

2. This witness has also showed his ignorance as to whether accused Azizullah was or was not bill clerk, budget clerk or account clerk. He also admitted that there was no concern of accused Azizullah Panhwar with the transaction of amount involved in instant reference. Such admission on his part amounts to exonerating the accused of the charge / allegations levelled by the prosecution against him.

3. So far as the evidence of PW-8 Kashif Noor, Investigating Officer is concerned, he is not an eye-witness, nor was he working in the Highway Division but his evidence is based on the information given to him by the officials of Highway Division or bank employees. However, from perusal of his cross-examination, it seems that he has also made similar admissions with regard to the initial of accused Azizullah as made by PW-3 Amir. In addition, he also admitted that neither he is expert of recognizing the initials, nor he sent the initial, purportedly to be of accused Azizullah, to any expert for verification.

4. In view of admissions / contradictions made by above three witnesses as narrated above, their evidence does not come under the category of "unimpeachable evidence" which, as per settled principle enunciated by the Superior Courts, is the requirement to prove/establish the case against the accused beyond shadow of reasonable doubt. In this connection, reference may be made to the case of Muhammad Asif (supra).

5. Yet, there is another legal aspect of the case. The criteria for deciding an appeal against conviction and an appeal against acquittal of an accused, is totally different from each other, inasmuch as, it is settled principle of law that an accused before his conviction is presumed to be innocent and if after trial, he is acquitted, in such an eventuality he earns double presumption of innocence, thus, an acquittal judgment or order normally does not call for any interference and the same could be interfered with only in exceptional cases. In the case of Ahmed Omar Sheikh and others (2021 SCMR 873), it was held by a Full Bench of Honourable Supreme Court as under:

"33. Admittedly the parameters to deal with the appeal against conviction and appeal against acquittal are totally different because the acquittal carries double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rests upon impossibility. If there is a possibility of a contrary view even then acquittal could not be set aside as has been settled in the cases of The State v. Khuda Dad and others (2004 SCMR 425). Muhammad Nazir v. Muhammad Ali and another (1986 SCMR 1441), Rehmatullah Khan v. Jamil Khan and another (1986 SCMR 941), Mst. Daulan v. Rab Nawaz and another (1987 SCMR 497) and Gulzar Hussain v. Muhammad Dilawar and others (1988 SCMR 847)."

1. In the case of Sher Muhammad Khaskheli v. 2nd Assistant Sessions Judge and 6 others reported in 2021 YLR 1759, a Division Bench of this Court, while quoting various decisions of Honourable Supreme Court, has held as under:

"8. The principles for appreciation of evidence in appeal against the acquittal are now well settled, for, an accused is presumed to be innocent and if after trial, he is acquitted, he earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is none reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty. Reliance in this context is placed on the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96). The Hon'ble apex Court of Pakistan has observed that:

"Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".

1. In the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), the Hon'ble Supreme Court of Pakistan has held that;

"An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."

1. In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that;

"while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."

1. In the case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), the Hon'ble Supreme Court has held that;

"It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence .....law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."

1. In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Hon'ble Supreme Court has held that;

"The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or shocking conclusion has been drawn. Moreover, in a number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities".

2025 P Cr. L J 881

[Sindh]

Before Naimatullah Phulpoto, J

aRSHAD hUSSAIN---Appellant

Versus

The State---Respondent

Criminal Appeal No. 180 and Confirmation Reference No. 01 of 2019, decided on 16th October, 2024.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, committing robbery or dacoity, at the time of committing dacoity or robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, common intention---Appreciation of evidence---Ocular account proved---Accused was charged for committing murder of the brother of complainant by firing while snatching money---Prosecution case mainly rested on the evidence of a sole eye-witness/employee in the shop of deceased---Said witness deposed that on 09.02.2015 at about 03.30 pm, he was present in the shop with deceased---At that time, two persons arrived at shop having weapons in their hands; they pointed weapons at deceased, who was owner of the shop and demanded money from him---Deceased handed over all money, but accused persons demanded more money---Thereafter, accused persons quarrelled with deceased and one of the accused fired shot at deceased on his abdomen and they ran away---However, appellant was apprehended by the persons of the locality outside of the shop and from his possession one pistol was recovered---Police made said witness as mashir of arrest and recovery---Thereafter, deceased then injured was shifted to the hospital where he succumbed to the injuries---Said witness deposed that accused present before the trial Court was same---Eye-witness of incident admittedly was not related to the deceased; he was serving at the shop of deceased since 12/13 years and he could not be termed as a chance witness---On the day of incident, S.161 Cr.P.C statement of eye-witness was recorded, which clearly showed that he was present at the time of incident---Said witness was subjected to cross-examination, but intrinsic value of his evidence could not be shaken---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, due to mitigating circumstance, the death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Atta Muhammad and another v. The State 1995 SCMR 599; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Muhammad Ibrahim v. Ahmed Ali and others 2010 SCMR 637 ref.

Muhammad Younas and another v. The State and others 1990 SCMR 1272 and Shamshad Ali v. The State 2011 SCMR 1394 rel.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, committing robbery or dacoity, at the time of committing dacoity or robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, common intention---Appreciation of evidence---Lodging of FIR within one hour and thirty minutes---Accused was charged for committing murder of the brother of complainant by firing while snatching money---Incident occurred in the shop of deceased on 09.02.2015 at 03.30 pm and FIR was promptly lodged within 01 hour and 30 minutes of incident---Such fact excluded possibility of false implication of appellant in the case---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, due to mitigating circumstance, the death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, committing robbery or dacoity, at the time of committing dacoity or robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empty---Reliance---Accused was charged for committing murder of the brother of complainant by firing while snatching money---Weapon of offence recovered from the appellant was transmitted to the office of Forensic Science Laboratory without any delay in its dispatch along with one empty and two live bullets---Report of Forensic Science Laboratory further confirmed that the empty recovered from the spot had matched with the weapon recovered from the appellant, which was positive in nature---All the said aspects further strengthened the prosecution case in its totality---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, due to mitigating circumstance, the death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

(d) Criminal trial---

----Minor contradictions in evidence of witnesses---Scope---Minor contradictions do creep in with the passage of time and can be ignored safely.

Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 392, 396, 397 & 34---Qatl-i-amd, robbery, committing robbery or dacoity, at the time of committing dacoity or robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Single fire shot---Intention to commit dacoity and not murder---Accused was charged for committing murder of the brother of complainant by firing while snatching money---Record showed that intention of the appellant was to snatch money from the deceased in his shop and not to commit his murder; when more money was demanded by accused persons, a scuffle started and appellant fired a single shot upon the deceased on his abdomen, and fire was not repeated---Single mitigating circumstance, available in a particular case, would be sufficient to put on guard the judge not to award the penalty of death but life imprisonment---Thus, sentence of death awarded to the appellant was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 and Imtiaz alias Taji and another v. The State and others 2020 SCMR 287 rel.

Iftikhar Ahmed Shah, Barrister Raja Zeeshan and Muhammad Naeem Awan for Appellant.

Muhammad Iqbal Awan and Ali Haider Saleem Additional Prosecutors General Sindh for the State.

Mehmood Alam having CNIC No. 42401-4841145-5 and Muhammad Aamir having CNIC No.42101-6962321-5 are present in person for the Complainant.

Date of hearing: 30th September, 2024.

Judgment

Naimatullah Phulpoto, J.--- Appellant Arshad Hussain was tried by learned IX-Additional Sessions Judge, Karachi West in FIR No.37/2015 for offences punishable under Sections 302, 392, 396, 397, 34 P.P.C registered at PS Peerabad. After regular trial, vide judgment dated 15.02.2019, appellant was convicted for an offence punishable under Section 302(b) P.P.C as Tazir and sentenced to death and to pay compensation of Rs.200,000/- to be paid to the legal heirs of deceased under Section 544-A Cr.P.C. Appellant was further convicted under Section 397 P.P.C and sentenced to seven years R.I and to pay fine of Rs.100,000/-, in case of default, he was directed to suffer six months S.I. Trial Court made reference under Section 374 Cr.P.C for confirmation of death or otherwise of appellant, to this Court.

1. Appellant preferred Criminal Appeal No. 180/2019 (Arshad Hussain v. The State) against his conviction and sentence. Appeal as well as confirmation reference were heard by a learned Division Bench, comprising of my brothers (Mohammad Karim Khan Agha and Irshad Ali Shah, JJ). Vide judgment dated 24.08.2021, there was a difference of opinion; one of Hon'ble Judge Mohammad Karim Khan Agha J.) dismissed the appeal and confirmed death sentence whereas, another my brother (Irshad Ali Shah, J.) recorded acquittal and answered the confirmation Reference in negative. In view of difference of opinions/judgments, Honourable Chief Justice has been pleased to refer the matter to me to decide as a third Judge.

2. Brief facts of the prosecution case in a nutshell as disclosed in the FIR are that on 09.02.2015, the complainant was present at his home, when his son Amir informed him on phone that Javed (younger brother of the complainant) had received a bullet injury in his shop, who had been taken to hospital for treatment. Complainant reached at Abbasi Shaheed Hospital immediately, where injured Javed was already shifted to operation theatre. P.W-02 Shamsher Ali, an employee in the shop of deceased narrated actual incident to the complainant that on 09.02.2015 at 1530 hours, two young boys entered into the shop, pointed their pistols at Javed and demanded money from him. It is alleged that accused snatched money from Javed (now deceased) and demanded more money from him, to which Javed refused. It is further alleged that one accused fired at Javed. On hearing fire shot, people of the area gathered at spot and apprehended appellant Arshad Hussain outside of shop, whereas co-accused made his escape. Police party of PS Peerabad arrived at spot immediately and took the custody of apprehended accused. Police enquired his name, to which he disclosed his name as Arshad son of Sanaras Khan and disclosed the name of co-accused, who ran away as Bashir. Police secured a .30 bore pistol along with two live rounds loaded in the magazine from the possession of the appellant, it was unlicensed. Such mashirnama was prepared on spot in presence of mashirs; case property was sealed. Thereafter, accused and case property were brought to the police station, where FIR was lodged against the accused on 09.02.2015 at 1710 hours for offences punishable under Sections 302, 392, 396, 397, 34 P.P.C.

3. Investigation officer inspected place of wardat situated in the shop of deceased and collected one empty of .30 bore inside the shop and prepared such mashirnama in presence of mashirs and sealed it at spot. I.O recorded statements of P.Ws under Section 161 Cr.P.C. On 10.02.2015 I.O dispatched the crime weapon, two live bullets and one empty to FSL for examination and report. I.O received positive report. On conclusion of usual investigation submitted report under Section 173 Cr.P.C against accused Arshad Hussain showing accused Bashir as absconder. Proceedings against absconding accused were completed by trial Court.

4. Trial Court framed Charge against accused at Ex.02, to which he pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution examined 08 P.Ws. Thereafter, prosecution side was closed.

5. Trial Court recorded statement of accused Arshad under Section 342 Cr.P.C at Ex.30, in which he raised plea that he was picked up by Rangers and has been falsely implicated in this case. Accused declined to examine himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations and did not lead evidence in his defence.

6. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 15.02.2019 convicted and sentenced the appellant to death as stated above and made confirmation reference to this Court. Hence, appellant filed appeal before this Court.

7. The evidence produced before the Trial Court finds an elaborate mention in the conflicting judgments/opinions recorded by my brothers dated 24.08.2021. Therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocate for the appellant mainly argued that P.W-02 Shamsher Ali was employee of the deceased and interested, he was examined before trial Court, to strengthen case of prosecution; that evidence of P.W Shamsher Ali was contradictory to medical evidence with regard to number of injuries. It is further argued that it has come in evidence that appellant was given beating by the persons of the locality at spot but accused was not referred to the medical officer for examination; that there are material contradictions in prosecution evidence; that blood stained earth was not collected by the I.O from the shop. Lastly, argued that prosecution has filed to prove its' case against the appellant. In support of his contentions, reliance has been placed upon the cases reported as Atta Muhammad and another v. The State (1995 SCMR 599), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Muhammad Ibrahim v. Ahmed Ali and others (2010 SCMR 637).

9. Mr. Muhammad Iqbal Awan, Addl. P.G argued that P.W-02 Shamsher Ali was sole eye-witness of the incident, he was employee of deceased Javed and he was present in the shop at the time of incident, which occurred on 09.02.2015 at 1530 hours; that evidence of P.W Shamsher is supported by medical evidence; that the conflict in regard to number of injuries is not material as appellant was only accused alleged to have caused such injuries to the deceased. It is further argued that appellant was arrested at spot, unlicensed pistol used by him in commission of offence was recovered from his possession and empty was collected from the place of wardat, that FSL report was also positive; that statement of eye-witness could not be discarded for mere reason that blood stained earth was not collected by the I.O. Learned Addl. P.G argued that prosecution has proved its' case against the appellant beyond any shadow of reasonable doubt. However, learned Addl. P.G frankly submitted that appellant fired a single shot upon deceased, fire was not repeated and intention of the appellant was to commit robbery. According to Addl. P.G there are mitigating circumstances to reduce sentence of death to imprisonment for life. Addl. P.G prayed for maintaining the conviction recorded against the appellant.

10. Legal heirs of the deceased present in Court submitted that death sentence passed by the trial Court to the appellant may be confirmed.

11. It appears that Mr. Justice Mohammad Karim Khan Agha believed evidence of P.W-02 Shamsher Ali and others, confirmed death sentence of appellant and opined as follows:

"(i) Eye-witness PW 2 Shamsher Ali. He was working in the shop at the time of the incident. According to his evidence on 09.02.2015 he was present at the shop at about 15.30 hrs when two persons arrived at the shop having weapons in their hands and demanded money from the deceased whereupon one of them shot the deceased in abdomen after quarreling with them. That when the robbers tried to escape due to the hue and cry the local people were able to apprehend the appellant and seize pistol from him a few feet from the spot who they handed over to the police a few moments later who arrested him.

Although he did not know the appellant it was a day light incident and the appellant and his accomplice were before the eye-witness in the shop for some time during their robbery and quarrel with unmuffled faces when the appellant shot the deceased and as such he would have got a good look at him and identified him in court. Even otherwise the appellant was captured immediately after he left the shop along with his pistol and was then handed over to the police. Thus, based on the particular facts and circumstances of this case when in effect the appellant was arrested red handed on the spot there was no need for an identification parade and as such we find the identity of the appellant as one of the persons who robbed the shop and murdered the deceased to be proven from the evidence. In this respect reliance is placed on Dadullah's case (Supra). Furthermore, the eye-witness had no reason to falsely implicate the appellant in this false case and the people of the locality had no reason to just grab a by stander and foist a pistol on him and then say that he was the culprit. Such conduct does not appeal to logic, common sense and reason. More so in Pakistan where it is quite common for the public to catch hold of a criminal who is caught in the act and then hand him over to the police.

The eye-witness is not related to the deceased and is not a chance witness as he worked in the shop of the deceased as corroborated by the evidence of the complainant PW 1 Habibullah who even names him as being in the shop when the incident took place in his FIR.

He gave his S. 161 Cr.P.C eye-witness statement on the same day which left no room for concoction. His evidence reflects that of his S. 161 statement and the FIR and there have been no significant improvements in the same during his evidence so as to render his evidence unreliable. He had no proven enmity with the appellant and had no reason to falsely implicate him in the robbery and murder of the deceased. His evidence was not dented despite lengthy cross-examination. We find his evidence to be reliable, trust worthy and confidence inspiring and we believe the same and can convict on this evidence provided that there is some corroborative/ supportive evidence. In this respect reliance is placed on Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in Farooq Khan v. The State (2008 SCMR 917), 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."

On the other hand, my another brother Mr. Justice Irshad Ali Shah recorded his separate opinion of acquittal and had observed as under:

1. The facts of the case need not to be repeated as those has been elaborately disclosed by his lordship in his Judgment. Admittedly, PW Shemsher is the only eye-witness to the incident. It is settled by now that the conviction could be awarded on the basis of solitary evidence of the witness, provided it is found to be trustworthy. PW Shemsher was employee of deceased Javed. It has inter alia been stated by him that the deceased sustained one bullet wound on his abdomen it was caused to him by the culprits during course of robbery, the deceased was taken by them to the Hospital, one of the culprit made his escape good while other (the appellant) was apprehended by the people available in locality after severe maltreatment from him was secured the Pistol and he then was arrested formally by the Police. On examination as per medical officer Dr. Muhammad Javed, the deceased was found sustained two fire shot wounds with no exit. By stating so, he belied PW Shemshar that the deceased was caused single fire shot injury at his abdomen. It was further stated by the said Doctor that the deceased was brought at the Hospital through Chhipa ambulance by Driver Nisar and none of his relative was found present at that time. By stating so, he belied PW Shemshar that they took the deceased to the Hospital. The circumstances suggest that the PW Shemsher has been introduced in investigation subsequently by the Police to strengthen the case of Prosecution. In that situation, it would be unsafe to rely upon his solitary evidence to maintain the conviction which is found to be doubtful and untrustworthy. None from public who allegedly apprehended the appellant after incident has been examined by the Prosecution, such omission could not be lost sight of. As per SIO SIP Rooh-ul-Ameen Shah, no blood mark was found at the place of incident. It goes to suggest that the incident has occurred at the place other than the one claimed by the complainant party. No postmortem has been conducted on the dead body of the deceased. The production of death certificate could hardly be dubbed to be substitute of postmortem report. There is no recovery of alleged robbed money. Nothing has been brought on record in shape of memo of injuries or medical certificate which may suggest that the appellant was apprehended by the public after severe maltreatment. In these circumstances, it would be unsafe to maintain the conviction against the appellant on the basis of recovery of pistol, which too in first instance was allegedly recovered by the person other than the police official."

2. I have perused difference of opinions/judgments recorded by my learned brothers and have heard learned advocate for the appellant, Addl. P.G and re-examined the entire evidence.

3. Prosecution case mainly rests on the evidence of a sole eye-witness namely PW Shamsher Ali. My one brother Judge has heavily relied upon the evidence of P.W Shamsher Ali and other evidence, while another brother Judge had disbelieved his evidence. Hence, I have re-examined evidence of P.W Shamsher Ali and other evidence minutely.

4. After re-examination of entire evidence and defence plea, I have no hesitation to agree with the opinion of my brother Mr. Justice Mohammad Karim Khan Agha that prosecution had proved its' case against the appellant beyond any shadow of reasonable doubt for the reasons that incident occurred in the shop of deceased Javed on 09.02.2015 at 1530 hours and FIR was promptly lodged within 01 hour and 30 minutes of incident. It excluded possibility of false implication of appellant in the case. P.W-02 Shamsher Ali deposed that on 09.02.2015 at about 1530 hours, he was present in the shop with deceased Javed. At that time, two persons arrived at shop having weapons in their hands, they pointed out weapons at Javed, who was owner of the shop, and demanded money from him. Seth Javed handed over all money, but accused persons demanded more money. Thereafter, accused persons quarreled with Javed and one of the accused fired shot at Javed in his abdomen and they ran away. However, appellant was apprehended by the persons of the locality outside of the shop and from his possession one pistol was recovered. Police made him mashir of arrest and recovery. Thereafter, Seth Javed was shifted to the hospital where he succumbed to the injuries. P.W-02 Shamsher Ali deposed that accused Arshad Hussain present before the trial Court was same. He was cross-examined at length, he replied that only one person made fire upon the deceased and accused Arshad Hussain was apprehended in front of the shop, where incident had occurred. Police arrived at the scene of incident within half an hour. According to P.W-02 Shamsher Ali deceased Javed received only one bullet wound just below the abdomen. He has denied the suggestion that accused has been falsely implicated in this case. P.W-02 Shamsher Ali eye-witness of incident admittedly is not related to the deceased, he was serving at the shop of deceased since 12/13 years, he cannot be termed as a chance witness. On the day of incident, 161 Cr.P.C statement of P.W Shamsher Ali was recorded, which clearly showed that he was present at the time of incident. It may be mentioned here that P.W-02 Shamsher Ali was subjected to the cross-examination, but intrinsic value of his evidence could not be shaken. Evidence of eye-witness could not be discarded for mere reason that blood was not collected by the I.O from the shop, but empty was collected by the I.O from the shop. Hence, I hold that his evidence was quite reliable, trust worthy and confidence inspiring. I have no reason to disbelieve it. In the present case medical evidence also supported the ocular evidence. P.W-07 Dr. Muhammad Javaid examined injured Muhammad Javed and opined that deceased Javed had sustained two injuries by means of fire arm. Learned advocate for the appellant contended that ocular evidence is contradictory with medical evidence with regard to the number of injuries sustained by the deceased. There is no principle of law that in each and every case Doctor's evidence must have preference over the direct evidence as held in the case reported as Muhammad Younas and another v. The State and others (1990 SCMR 1272). It is the case of prosecution that appellant was only accused alleged to have caused the said injuries. Therefore, conflict in regard to the number of injuries caused by him is not material as held in the case reported as Shamshad Ali v. The State (2011 SCMR 1394). Prosecution evidence has been properly assessed by the trial Court and I agree with the opinion of my brother Mr. Justice Mohammad Karim Khan Agha. It is settled principle of law that quality of evidence is to be seen and not its' quantity and evidence of P.W Shamsher Ali qualifies to be relied upon. Another unrebutted aspect in this case is that the appellant was apprehended at the spot and he was given beating by the persons of the locality and on the same date (09.02.2015), appellant was referred by SIP Ghazan Zada of PS Peerabad to the MLO of Qatar Hospital for his examination leaving no ambiguity qua the involvement of the appellant in the aforesaid crime. The weapon of offence recovered from the appellant was transmitted to the office of Forensic Science Laboratory without any delay in its dispatch along with one empty and two live bullets. The report of Forensic Science Laboratory further confirmed that the empty recovered from the spot had matched with the weapon recovered from the appellant, which is positive, in nature. All these aspects further strengthen the prosecution case in its totality. Learned advocate for the appellant contended that various contradictions in the statements of the prosecution witnesses have not been taken into consideration causing serious prejudice against the appellant. I have examined such contradictions and found that the same are of minor nature. It may be observed that minor contradictions do creep in with the passage of time and can be ignored safely as held in the case of Khadim Hussain v. The State (PLD 2010 SC 669).

5. Appellant has raised plea that he was picked up by Rangers and has been falsely implicated in this case. I have re-examined defence plea and found it without substance. Trial Court as well as my one brother Mr. Justice Mohammad Karim Khan Agha rightly disbelieved the defence theory while holding that it was an afterthought plea.

6. However, I respectfully disagree with the opinion recorded by my brother Mr. Justice Irshad Ali Shah for my above stated reasons.

7. I may state here that under Section 429 Cr.P.C, reference to the third judge is with regard to the whole case and the judgment or order shall follow such opinion. In the case of Muhammad Sharif v. The State (PLD 1971 Lahore 708), it is held as under:

"When on a difference of opinion as case is referred to a third Judge no fetter can be placed on the third Judge. He is at liberty to express and act upon the opinion which he himself arrives at. If he chooses, he can pass a sentence of death, even though one Judge favours an acquittal and the other gives a sentence of transportation for life when convicting the accused."

1. In the view of above legal position, I am entitled to determine the question of sentence after close scrutiny of evidence.

2025 P Cr. L J 913

[Sindh]

Before Naimatullah Phulpoto and Irshad Ali Shah, JJ

The State/Anti Narcotics Force (ANF) through Assistant Director (Law)---Appellant

Versus

Faqir Hussain---Respondent

Criminal Revision Application No. 142 of 2012, decided on 22nd August, 2024.

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

----Ss. 6 & 9(c)---Recovery of charas---Plea of guilt taken at belated stage of trial---Award of lesser sentence without fine---Legality---Private respondent with one more culprit was found possessing/transporting 65 kg. of charas through his car, for which the case was registered by ANF police---At the subsequent stage of the trial, plea of guilt was considered by the Trial Court and he was convicted and sentenced to undergo rigorous imprisonment for 05 years with the benefit of S.382(b), Cr.P.C., without fulfilling mandatory requirement of imposing a fine upon him, which was assailed by the State/ANF before the High Court by preferring a revision application---Plea of the guilt of an accused could be recorded once that too soon after framing of the charge---There was nothing in law or procedure which may permit the Courts to accept the plea of the guilt of an accused at subsequent stage of trial by making an application---More than 10 k.g. charas was recovered from the respondent, which as per law entailed the punishment of death/imprisonment for life and fine---Imprisonment of 05 years to the respondent on the basis of his so-called plea of guilt was not a legal sentence that could be sustained---Lesser sentence awarded to respondent was set aside with a direction to Trial Court to proceed with the case further as per law---Since the case was 19 years old, thus, the respondent was allowed to continue with bail subject to furnishing a fresh surety and PR bond---Criminal revision was disposed of accordingly.

Habib Ahmed, Special Prosecutor ANF for the State.

Farhad Khan for Respondent.

Date of hearing: 13th August, 2024.

Judgment

Irshad Ali Shah, J.---The facts, in brief, necessary for the disposal of the instant Revision Application are that the private respondent with one more culprit was found possessing/transporting 65 kg. of Charas through his car, for which the present case was registered by ANF police. At the subsequent stage of the trial, the private respondent by making an application accepted his guilt; it was considered his plea to the guilt and then was convicted for the said offence and sentenced to undergo RI for 05 years with the benefit of Section 382(b) Cr.P.C without imposing a fine upon him which was mandatory by learned Special Judge CNS-1 Karachi vide judgment dated 16.01.2012, which is impugned by the State/ANF before this Court by preferring the instant Revision Application for awarding the adequate sentence to the private respondent.

2025 P Cr. L J 919

[Sindh]

Before Muhammad Karim Khan Agha, J

Natasha Danish---Appellant

Versus

The State---Respondent

Criminal Bail Application No. 2097 of 2024, decided on 30th September, 2024.

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

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), S. 11---Drinking liable to Tazir---Bail, grant of---Further inquiry---Allegation against the appellant was that she was found to have been under the influence of Methamphetamine---Record showed that the present case was an off shoot of a case registered under Ss.320, 322, 337-G, 427 & 279 P.P.C, wherein the applicant was accused of causing death by reckless driving---However, the case was compromised by the parties and as such, the applicant stood acquitted on account of compromise---Maximum sentence for the offence under which the applicant had been charged was 03-years imprisonment and the general rule was that bail should be granted in such like cases unless exceptional circumstances existed---No exceptional circumstances existed in the case in order to decline the bail especially when the complainant side had already compromised the main case, which led to the acquittal of the applicant---Even otherwise a glance at the chemical report revealed that the applicant's blood sample contained no narcotic, sedative, psychoactive toxic or any other foreign compound/element in the given sample---Urine sample given by the applicant showed that Methamphetamine i.e. narcotic was detected in the given sample, hence there appeared to be a contradiction between the two reports (blood and urine) which made the case one of further inquiry---Applicant was a lady and had three children all of whom were school going out of whom one was a young female and as such they needed the support of their mother who had already been in jail for the last six weeks---Bail application was allowed, in circumstances.

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

----S.497---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative assessment of the evidence available on record and have no bearing on the trial of the applicant.

Farooq H. Naek, Aamir Mansoob Qureshi and Syed Qaim Ali for Applicant.

Muhammad Iqbal Awan, Addl. Prosecutor General along with I.O./SIP M. Shakir Rind, PS Bahadurabad, Karachi for the State.

Order

Muhammad Karim Khan Agha, J.---Applicant Natasha Danish was booked in FIR No.242/2024 under Section 11 of PEHO 1979 registered at PS Bahadurabad, Karachi. She applied for post arrest bail before Court of IVth Additional Sessions Judge (East) Karachi which was declined vide order dated 13.09.2024. Hence the applicant approached this Court for post arrest bail.

1. To a certain extent this is an off shoot case whereby the applicant was booked in Crime No.229/2024 under sections. 320/337-G/279/427 P.P.C read with Section 322 P.P.C and Section 100 of PEVA registered at PS Bahadurabad, Karachi where in effect the applicant was accused of causing death by reckless driving. However, this case was compromised by the parties and as such the applicant stands acquitted on account of compromise.

2. This off shoot case relates to the fact that after the incident the applicant went to the Jinnah Post Graduate Medical Central (JPMC) Karachi where the blood and urine samples of the applicant were taken. According to the FIR the applicant was found to have been intoxicated with Methamphetamine (Ice) which led to the above FIR being lodged under Section 11 PEHO 1979.

3. I have heard learned counsel for the applicant and learned Additional Prosecutor General Sindh and perused the record. Learned APG has vehemently opposed the grant of bail.

4. At the outset I would like to point out that this case has attracted a lot of media attention much of which is not in favor of the applicant as well as outery from civil society which might have caused prejudice to her trial. It is made clear that the Courts are not influenced by any extraneous factors and that judges decide the cases before them strictly in accordance with the law and the facts of the case.

5. I have gone through Section 11 PEHO, 1979 which actually deals with drinking of Alcohol and prescribes the maximum sentence of 03 years imprisonment. It is difficult to see how the applicant has been booked under this Section since it was a narcotics substance (ice) which was allegedly found in her body rather than Alcohol, however, this issue I leave for the trial Court.

6. As mentioned above, the maximum sentence available for the offence under which the applicant has been charged is 03 years imprisonment and the general rule is that bail should be granted in such like cases unless exceptional circumstances exist. There is no exceptional circumstance existing in this case in order to decline the bail especially when the complainant side has already compromised the main case, which lead to the acquittal of the applicant. Even otherwise a glance at the chemical report reveals that the applicant's blood sample found no narcotic, sedative, psychoactive toxic or any other foreign compound /element in the given sample. The urine sample given by the applicant found that the Methamphetamine (Ice) i.e. narcotic was detected in the given sample, hence there appears to be a contradiction between the two reports (blood and urine) which makes this a case of further inquiry.

7. Even if the applicant had taken ice (narcotic) it would prima facie have been a very small amount since otherwise the applicant would have overdosed. Hence even if a case fell under CNS Act, 1997 and could be made out against her since the quantum of ice which the applicant had taken cannot be ascertained from her urine sample and is likely to be very minor in nature the maximum sentence would most probably be less than 03 years which would entitle her to the grant of bail as mentioned above.

8. It is also relevant that the applicant is a lady and has 03 children all of whom are school going out of whom one is a young female and as such they need the support of their mother who has already been in jail for the last 06 weeks.

2025 P Cr. L J 977

[Sindh (Hyderabad Bench)]

Before Arbab Ali Hakro, J

Ishtiaque ali---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-102 of 2021, decided on 4th August, 2023.

(a) Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 (III of 2020)---

----S. 8---Possession of Gutka---Appreciation of evidence---Safe custody and transmission of the samples to the laboratory not proved---Prosecution case was that 15 packets of Gutka were recovered from the possession of accused---Complainant deposed that Gutka was purportedly discovered on 07.11.2020, while its corresponding samples were dispatched to the office of the Chemical Examiner on 09.11.2020, thereby resulting in a delay of two days---Prosecution had failed to provide any justification for such inordinate delay in sending the sample for chemical examination---Samples from the police station to the chemical laboratory for analysis had been handed over to Police Constable, however, neither had he been cited as a witness nor examined to support the prosecution's version regarding the safe transmission of the samples to the laboratory---Thus, due to non-production of the material witness by the prosecution, no chain existed to prove the safe custody of the samples to the laboratory---Missing chain created serious doubts about the authenticity and credibility of the Chemical Report---Appeal against conviction was allowed, in circumstances.

2018 MLD 1329; 2020 MLD 1883; 2021 P Cr. LJ 1334; 2022 MLD 150 and 2022 YLR 2047 ref.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300 rel.

(b) Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 (III of 2020)---

----S. 8---Possession of Gutka---Appreciation of evidence---Contradictions in the statements of witnesses---Prosecution case was that 15 packets of Gutka were recovered from the possession of accused---Record showed that the mashir stated that on 07.11.2020, he along with complainant and other police officials inspected the place of incident where Investigating Officer prepared mashirnama of the place of incident, whereas Investigating Officer in his examination-in-chief belied the words of said witness and stated that Police Constable wrote mashirnama of the place of an incident under his dictation---Similarly, complainant in his examination-in-chief, stated that he prepared a memo of arrest and recovery---However, during the trial, handwriting of the complainant was obtained, which showed that there was much difference in the same, meaning thereby that the memo of arrest and recovery was not in the handwriting of the complainant---Said fact was conceded by the complainant in his cross-examination, who admitted that there was a difference in the handwriting---Only one packet was sealed for chemical analysis but the remaining 14 packets allegedly containing 105 packets each were not sent for chemical examination in order to prove that the said packets contained substance hazardous and unfit for human consumption---Numbers and description of the currency notes were not mentioned in the memo of arrest and recovery---No purchase was seen at the place of incident, nor the appellant was seen selling the alleged substance, therefore, there appeared no proof of sale of the alleged substance---Thus, the entire prosecution case became highly doubtful---Appeal against conviction was allowed, in circumstances.

(c) Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 (III of 2020)---

----S. 8---Criminal Procedure Code (V of 1898), S. 103---Possession of Gutka---Appreciation of evidence---Non-association of private witnesses in the proceedings of arrest and recovery---Prosecution case was that 15 packets of Gutka were recovered from the possession of accused---Record showed that the place of the arrest of the appellant and recovery from him was shown to be a link road frequented by disciples of a shrine and the general public---Timing was early hours of the day, i.e. 7.00 am, yet nobody from the public was taken as mashir---Thus, the mandatory provisions of S.103, Cr.P.C, had been flagrantly violated---Indeed no effort appeared to have been made for it, therefore, non-compliance with the provision of S.103, Cr.P.C, created doubt in the prosecution story---Appeal against conviction was allowed, in circumstances.

Mushtaq Ahmed v. The State PLD 1996 SC 574 and The State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Shahnawaz Brohi for Appellant.

Nazar Muhammad Memon, Additional Prosecutor General, Sindh for the State.

Date of hearing: 17th July, 2023.

Judgment

Arbab Ali Hakro, J.---This Criminal Appeal under section 410 of Criminal Procedure Code, filed by Ishtiaque Ali, the appellant, is directed against the Judgment dated 06.07.2021, passed by Additional Sessions Judge-1, Tando Muhammad Khan, emanating from Crime No. 139 of 2020 registered under Section 8 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 ("the Act of 2019") at Police Station Tando Ghulam Hyder District Tando Muhammad Khan, whereby the appellant has been convicted and sentenced to suffer rigorous imprisonment for 02(two) years and to pay a fine of Rs.200,000/- and in default of payment thereof to further undergo 06(six) months simple imprisonment.

1. The case of the prosecution is that on 07.11.2020, SIP Kashif Abbas Khowaja of Police Station Tando Ghulam Hyder District Tando Muhammad Khan, along with Constables Mehboob Ali and Naveed Ahmed, left PS for patrolling at 6:00 a.m. vide entry No.22 in the official vehicle driven by Constable Ali Nawaz, and when they reached at Dando link road near Bukhari Dargah, they spotted one person standing holding white sack on the road towards the eastern side, who on seeing them, tried to slip away, but was rounded up at 7:00 a.m. On enquiry, he disclosed his name as the present appellant. On opening the sack, 15(fifteen) packets of Indian Safina Gutka, cach packet containing 105 sachets total of 1575 were found in it, out of which one packet containing 105 sachets was sealed for chemical analysis, while the remaining 14(fourteen) packets were sealed separately in the same sack. His further personal search was conducted, which yielded the discovery of two currency notes of Rs.500/-, and seven currency notes of Rs. 100/- a total of Rs.1700/-from the side pocket of his shirt. Nobody from the public was seen around; hence, complainant nominated Constables Mehboob Ali and Naveed Ahmed as mashirs, and in their presence accused was arrested under a mashirnama attested by them. The accused and the recovery made from him were taken to the Police Station, where the case was registered against him by the complainant on behalf of the State.

2. After completion of the investigation, a complete challan was drawn and accordingly sent up for trial. To substantiate its version, the prosecution placed reliance on the account / statements of as many as 03(three) witnesses. On the close of prosecution evidence, the appellant's statement was recorded under Section 342 Cr.P.C, wherein he professed innocence and false implication; however, he neither opted to be examined on oath as provided under Section 340(2) Cr.P.C nor wished to produce defence evidence. After hearing arguments, the trial Court concluded that the prosecution had successfully brought home a charge against the appellant, as such, vide impugned Judgment dated 06.07.2021, convicted and sentenced the appellant as mentioned above. Hence, the instant appeal against the Judgment of conviction.

3. It was contended by learned counsel for the appellant that the appellant is innocent and has been involved in this case falsely by the Police otherwise he has nothing to do with the alleged incident and the evidence of the witnesses being doubtful has been believed by the trial Court without lawful justification, and there is inconsistency in the evidence of the complainant and the mashir; that handwriting as well as signatures of the mashirs are different; that there is a delay of about 02 days in sending the samples to the chemical analysis for which no plausible explanation has been furnished, that the prosecution has not examined Malkhana Incharge, therefore, the appellant is entitled to be acquitted by extending him the benefit of doubt. In support of his contentions, he relied upon the case laws reported in 2018 MLD 1329, 2020 MLD 1883, 2021 PCr.LJ 1334, 2022 MLD 150 and 2022 YLR 2047.

4. On the contrary, the learned Additional Prosecutor General has supported the impugned Judgment and submitted that the prosecution had proved the case against the appellant beyond a reasonable doubt, that all the eye-witnesses have supported the case of the prosecution, and there are no material contradictions in their evidence; that chemical Report in respect of the case property viz. Gutka is positive; that no enmity was suggested to implicate the appellant in the present case falsely; lastly, he prayed that the appeal of the appellant might be dismissed.

5. I have attentively heard the learned counsel for the appellant as well as learned Addl. Prosecutor General representing the State and carefully reviewed the record. It has been noticed that under the deposition of the complainant SIP Kashif Abbas, Gutka was purportedly discovered on 07.11.2020, while its corresponding samples were dispatched to the office of the Chemical Examiner on 09.11.2020, thereby resulting in a delay of two days. However, the prosecution has failed to provide any justification for this inordinate delay in sending the sample for chemical examination. It is also noted with great concern that the samples from the police station to the chemical laboratory for analysis have been handed over to PC Imtiaz, however, neither has he been cited as a witness nor examined to support the prosecution's version regarding the safe transmission of the samples to the laboratory. Thus, by not producing the material witness by the prosecution, no chain exists to prove the safe custody of the samples to the laboratory. The missing chain creates serious doubts about the authenticity and credibility of the chemical Report. In this regard, the Apex Court, in the case of Mst. Razia Sultana v. The State and another (2019 SCMR 1300) has held as under:-

"2 At the very outset, we have noticed that the sample of the nareutic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF. However, the said officer was not produced to prove the 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. The Apex Court has repeatedly held that if the chain of custody is broken, the chemical examiner's Report loses reliability. making it unsofe to support the conviction. Reliance is placed on State v. Iman Bakhsh (2018 SCMR 2039)."

1. In addition, there are glaring contradictions in the evidence of the PWs. For example, mashir PW-2 in his evidence stated that on 07.11.2020, he, along with SIP Adam Khushk, SIP Kashif Abbas, PC Naveed Ahmed and DPC Nawaz Ali, left P.S. for inspection of the place of incident where SIP Adam Khushk, (I/O) prepared mashirnama of the place of incident, whereas PW-3 SIP Adam Khushk in his examination-in-chief belied the words of PW-2 and stated that PC Naveed wrote mashirnama of the place of an incident under his dictation. Similarly, PW-1 in his examination in chief, stated that he prepared a memo of arrest and recovery. However, during the trial, at the request of learned defence counsel, in order to verify it, the handwriting of the complainant was obtained, which shows that there is much difference in the same meaning, thereby that the memo of arrest and recovery is not in the handwriting of the complainant. This fact is conceded by the complainant in his cross-examination, who admitted that there is a difference in the handwriting. It is also matter of record that only one packet was sealed for chemical analysis but the remaining 14 packets allegedly containing 105 packets each were not sent for chemical examination in order to prove that the said packets contained hazardous and substance unfit for human consumption. The numbers and description of the currency notes are not mentioned in the memo of arrest and recovery. No purchaser was seen at the place of incident, nor the appellant was seen while selling the alleged substance; therefore, there appears no proof of sale of the alleged substance. Thus, the entire prosecution case become highly doubtful.

2025 P Cr. L J 1009

[Sindh]

Before Muhammad Saleem Jessar, J

Mst. Iraj Jawaid---Applicant

Versus

The State and others---Respondents

Criminal Revision Application No. 184 of 2023, decided on 29th May, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 7 & 8---Illegal dispossession of property---Restoration of possession---Statutory tenant---Licensee---Complaint of the applicant, being tenant, for the restoration of possession in respect of property under discussion was dismissed by the Trial Court---Validity---Record transpired that the applicant/complainant being a Franchisee/Licensee was handed over possession of the subject shop by the Pakistan State Oil (PSO) and such license/agreement was to continue for a period of three years---After expiry of such license period neither any extension was made nor the parties entered into any other agreement---Thus, it was crystal clear that no rent agreement was entered into between the parties in respect of subject property, but, in fact, the PSO had granted franchise in favour of the applicant in respect of the subject property---Meaning thereby that the status of the applicant was not that of a "Statutory Tenant" as provided in the Sindh Rented Premises Ordinance, 1979, but she was merely a "licensee"---Licensee could not be equated with a tenant---According to the applicant/complainant on 17-11-2022 respondents Nos.1 to 5 had forcibly obtained signature of her husband over an agreement to vacate the shop/subject property, on which a civil suit was filed and subsequently on 29.12.2022, the respondents forcibly took over possession of the subject premises---However, the applicant had herself admitted that the plaint in the said suit was rejected by the civil Court vide order dated 25.02 2023---Although the complainant claimed her possession over the subject premises but the civil suit was filed by her husband and not by the applicant wherein he claimed his possession over the subject shop and on that basis he obtained interim order dated 02.12.2022, however the same was recalled and the plaint was rejected under O.VII, R.11, C.P.C.---Besides, applicant had also filed civil suit which was returned to her in terms of O.VII, R.10 C.P.C. vide order dated 08.09.2017---Bare reading of subsection (1) to S.3 of the Illegal Dispossession Act, 2005, revealed that protection had been provided to the "owner" and "occupier" against illegal and forcible dispossession---Clause (c) of S.2 of the Act, 2005, defined "occupier" to be "person who was in lawful possession of a property"---Hence, the claim of the applicant/ complainant in instant case that she being lawful occupier/tenant, could not be illegally and forcibly dispossessed by the respondents, was not of much consequence---Applicant was not a statutory tenant, thus was not a lawful occupier as defined under S.2 of the Act---Therefore her such claim carried no weight---Criminal revision application was dismissed, in circumstances.

Shaikh Muhammad Naeem v. Mst. Farida Gul 2016 SCMR 1931 and Syed Naseem Ahmed v. Mst. Rehana Taj and others PLD 2019 Sindh 94 ref.

Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others PLD 1963 WP Lahore 418; Royal Foreign Currency v. The Civil Aviation Authority and another 1998 CLC 374; Ashfaq Hussain and others v. Karachi Municipal Corporation and others PLD 1957 [W.P] Kar. 918; Messrs Sign Source v. Messrs Road Trip Advertisers and another 2005 CLC 1982; Mohiuddin Khan v. Messrs State Life Insurance Corporation of Pakistan and another 2017 YLR Note 199 and Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730 rel.

Muhammad Ayoub Chaniho, Sikandar Ali Shah, Murtaza Awan and Abid Ali for Applicant.

Zafar Ali Khan, Addl. Prosecutor General, Sindh along with SIP Bashir Ahmed of P.S Frere, Karachi for the State.

Asim Iqbal and Farmanullah, assisted by Ms. Syeda Mariyam for Respondents Nos. 2 to 6.

Date of hearing: 13th May, 2024.

Judgment

Muhammad Saleem Jessar, J.---By means of instant Criminal Revision Application filed under Sections 435 and 439 Cr. P.C., applicant Mst. Iraj Jawaid has assailed the order dated 19.08.2023 passed by learned Additional Sessions Judge-IX, Karachi (South), whereby Illegal Dispossession Application D.C No.517 of 2023 filed by the applicant, was dismissed and her complaint was not brought on record. The impugned order has been challenged on the ground that applicant being statutory tenant could not be dispossessed or ousted and since there is a Rent Agreement between the parties, therefore, there was no option for the Court below but to bring the complaint on record.

1. Briefly, the facts, relevant for the purpose of deciding instant Cr. Revision Application, are; that applicant / Complainant Mst. Iraj Jawaid wife of Jawaid Ali, filed a complaint under Sections 3, 4, 7 and 8 of the Illegal Dispossession Act, 2005, against the respondents stating therein that she was tenant in respect of a Tuck Shop, situated at PSO Petrol Pump, Clifton, Karachi. On 29.12.2022, at about 5.00 p.m. the respondents / proposed accused forcibly occupied said shop along with fittings, fixtures and other items lying therein and illegally dispossessed her from said shop. She further stated that on demand of possession of subject property, the respondents / proposed accused extended threats of dire consequences to her, hence she filed the complaint.

2. After receiving the complaint, the court below appointed concerned SHO as Inquiry Officer, who submitted his report stating therein that there was a dispute between complainant and the respondents on eviction of the applicant from the subject shop. He further stated that the agreement between the parties had expired in the year 2014. Station House Master further stated in the report that the complainant had filed Civil Suit No.368 of 2017, which had been decided in favour of respondents, subsequently her husband had also filed Suit No.1437/2022, which too was decided in favour of the respondents. He further stated that the subject property belongs to PSO and no agreement between complainant and respondents is in field. Station House Master further submitted; in the suit filed by the husband of complainant, a consent order dated 19.01.2023 was passed whereby Nazir of the Court was appointed with direction to visit the site. In compliance of said order, Nazir submitted his report stating therein that both parties had put their locks on the entrance gate of subject shop which shows that PSO did not dispossess the applicant from the premises by illegal means. He further submitted in his report that an agreement was entered into between Javed Ali, the husband of complainant, and PSO whereby said Javed Ali had agreed to handover possession of subject premises to PSO within a period of 15 days. Consequently, the Additional Sessions Judge-IX, Karachi (South), dismissed the complaint in terms of aforesaid order which has been impugned by way of instant criminal revision application.

3. I have heard arguments advanced by learned counsel for parties and have perused the material made available before me on the record.

4. Learned counsel for the applicant submitted that the applicant is a statutory tenant in respect of subject shop, therefore, she could not have been dispossessed or ousted without adopting due process of law. According to him, there is a Rent Agreement between the parties, therefore, there was no option for the Court below but to bring the complaint on record. In support of his contention, learned counsel drew attention of the Court towards Agreement (available at page-53 of the Court file) as well as MRC bearing No.409 of 2022 (available at pages-93 to 103 of the Court file). He next submitted that before depositing rent amount through MRC, the applicant had sent money orders to the respondents but they refused to receive the same. He further submitted that applicant had also filed Civil Suit No.368 of 2017 (re-Mrs. Iraj Javaid v. Pakistan State Oil Company Limited through its Business Manager); whereas, her husband Javaid had also filed Civil Suit No.1437 of 2022 (re-Jawed Ali v. Khawaja Amir and others) before the Court of Senior Civil Judge-IV, Karachi (South) wherein he was granted stay; however, during existence of said restraining order, they were dispossessed, which is an offence within meaning of sections 3 and 4 of Illegal Dispossession Act, 2005. He also drew attention of the Court towards report of the Nazir, submitted by him upon an application under Order 18 Rule 18 C.P.C. (available at page-107 of the Court file). He next submitted that on 17.11.2022 some unknown persons had got notice signed from the applicant asking her to vacate the premises within 15 days; besides, they also caused injuries to her husband, therefore, an application under Sections 22-A and 22-B Cr. P.C. was filed (available at page-75 of the Court file), which too was allowed. Before said order could be acted upon, respondents had also got registered FIR No.166 of 2022 at P.S Frere, Karachi for offences under Sections 147 and 506 P.P.C. Said case has been challaned which is now pending for trial before the Court having jurisdiction. He, therefore, submitted that the respondents had committed an offence within meaning of Sections 3 and 4 of the Illegal Dispossession Act, 2005, therefore, Additional Sessions Judge, has erred while dismissing her complaint. In support of his contentions, learned counsel placed reliance upon the cases of Shaikh Muhammad Naeem v. Mst. Farida Gul, reported in 2016 SCMR 1931 and Syed Naseem Ahmed v. Mst. Rehana Taj and others, reported in PLD 2019 Sindh 94. He, lastly prayed that by allowing instant criminal revision application, case may be remanded to the trial Court for deciding the same on merits after recording evidence of the parties.

5. Conversely, learned counsel for the respondents opposed revision application and submitted that the applicant is not a tenant as provided under the Sindh Rented Premises Ordinance (SRPO), 1979, (SRPO 1979) as the Agreement claiming by her to be a Rent Agreement is not a Rent Agreement, in fact, it is a Franchise Agreement which does not come within the ambit of tenancy. In support, he drew attention of the Court towards clauses 2 and 3 of said Agreement under the captions "Commencement" and "Rights and entitlement of the Franchise", available at page-55 of the Court file. As far as, payment of rent through MRC is concerned, learned counsel for the respondents submitted that since the applicant was not a tenant nor such agreement was executed between the parties, therefore, acceptance of the rent amount through MRC was unwarranted. He further submitted that applicant had also filed Civil Suit No.368 of 2017 which was returned to her in terms of Order VII Rule 10 C.P.C. vide order dated 08.09.2017, (available as Annexure-R/2 and R/3 of his Objections). He next submitted that husband of the applicant namely, Jawaid Ali, who is also her attorney, who filed Civil Suit No. 1437 of 2022 for Permanent Injunction and Mandatory Injunction, in which the respondents had submitted their written statement by raising preliminary objections. He submitted that considering the objections submitted by the respondents, plaint in the said suit was also rejected vide order dated 25.02.2023. He has annexed copies of the plaint, written statement as well as the orders dated 23.02.2023 and 25.02.2023 as Annexures R/4 to R/8 with his Objections. He also drew attention of the Court towards para-4 of order dated 25.02.2023 which, according to him, is very much essential for just decision of this case. As far as, case-law relied upon by counsel for the applicant is concerned, learned counsel for the respondents submitted that the same has no bearing upon the present case as the facts and circumstances of present case are different from that of cited cases, as neither the applicant is a statutory tenant nor she was title holder, therefore, was not competent to sue the respondents. He further submitted that right from 2010 to 2017 the applicant and her husband had occupied the premises without making payment of any amount in terms of the Franchise Agreement. He further submitted that the applicant has failed to establish her relationship with the respondents as tenant and landlord; besides, she had also remained in illegal occupation of the premises for about ten (10) years without paying any amount in terms of the Franchise Agreement, therefore, her status cannot be termed to be that of a tenant as provided by the provisions of SRPO, 1979. He lastly prayed that instant criminal revision application, being devoid of merits, may be dismissed.

6. Learned Additional P.G, Sindh, appearing for official respondent, placed on record the report submitted by the SHO, P.S Frere, Karachi, which was taken on record. While referring to its concluding para, learned Additional P.G. submitted that the premises in dispute belongs to KMC and the applicant, being its licensee through respondents, does not come within the ambit of the provisions of SRPO, 1979; hence, she cannot claim herself to be a statutory tenant, therefore, Court below has rightly rejected her complaint. He therefore, supported the impugned order and opposed instant revision application.

7. The moot point to be determine in instant case is; as to whether the applicant Mst. Iraj Jawaid is a statutory tenant in respect of a Tuck Shop situated at PSO Petrol Pump, Clifton, Karachi as defined under The Sindh Rented Premises Ordinance, 1979 or not ? The plea of the applicant is that she is a statutory tenant and has been paying monthly rent in respect of subject shop, therefore, she could not be dispossessed or ousted without adopting due legal process as stipulated under SRPO, 1979. According to her, there was a Rent Agreement between the parties, therefore, the Court below ought to have brought the complaint filed by her on record and the matter should have been decided on merits after recording evidence of the parties. In support of this plea, learned counsel for the applicant relied upon the Agreement available at page-53 of the Court file, so also MRC No.409 of 2022, available at pages-93 to 103 of the Court file.

8. On the other hand, plea of the respondents is that the applicant is not a tenant as provided under SRPO, 1979, for the reason that the Agreement claiming by her to be a Rent Agreement is not a "Rent Agreement" but the same is a "Franchise Agreement" which does not come within the ambit of tenancy and does not confer any statutory right upon the applicant.

9. It seems that the applicant along with memo of instant revision application at page-53 has filed copy of the Agreement which she claims to be a "Rent Agreement". However, from bare perusal of said Agreement it is evident that it is a "Franchise Agreement" and not a "Rent Agreement". From opening words of said Franchise Agreement, it appears that said Agreement was not entered into between the parties but, in fact, the Franchise was granted by Pakistan State Oil Company Limited in favour of the applicant Mst. Iraj Jawaid.

10. Before proceeding further, it would be advantageous to reproduce hereunder the relevant clauses of the said Franchise Agreement:

"THIS FRANCHISE IS HEEREBY GRANTED BY Pakistan State Oil Company Limited, a FRANCHISOR listed in all Stock Exchanges of Pakistan, having its Head Office at PSO House, Khayaban-e-Iqbal, Clifton, Karachi, hereinafter referred to and termed as "the FRANCHISOR" IN THE NAME AND IN FAVOUR OF Mst. Iraj Jawaid, dealer / operator of MG MOTOR (3) service station, resident of House No._____ Holder of NIC No.42501 83403426 hereinafter referred to and termed as "the FRANCHISEE" ……………………

2. COMMENCEMENT:

This Franchise is granted to commence with effect from March 1, 2007 and unless sooner terminated as provided herein will be valid for a period of three years. The renewal or extension of this Franchise solely and exclusively rests with the discretion of FRANCHISOR and the Franchise will have no vested right or entitlement therein, neither implied nor express.

3. RIGHTS AND ENTITLEMENT OF FRANCHISE:

3.1 This grant / FRANCHISE does not confer on the FRANCHISE any right, title, interest of claim, whatever the nature may be, in or upon the Shop Stop, its identifications or premises other than the temporary right to manage, run and operate the system and / or its identification, and that too in the manner and to the extent prescribed and approved by the FRANCHISOR herein or elsewhere in writing."

1. From perusal of the record, it transpires that the applicant / complainant being a Franchisee / Licensee was handed over possession of the subject shop by the PSO, and such license / agreement was to continue for a period of three years. After expiry of such license period neither any extension was made nor the parties entered into any other agreement. As per Clause (2) of the Agreement, quoted above, the Agreement commenced with effect from March 1, 2007. It is further provided in said clause that the Agreement will be valid for a period of three years, unless the same is terminated prior to the expiry of said three years' period. It was further provided that renewal or extension of said Franchise solely and exclusively rested with the discretion of FRANCHISOR / PSO and the Franchisee / Applicant will have no vested right or entitlement therein, neither implied nor express. Besides, Clause (3) of the Agreement provides that said Grant / FRANCHISE shall not confer any right, title, interest of claim on the FRANCHISEE / Applicant in or upon the subject Shop and the applicant shall have only a temporary right to manage, run and operate the subject premises and that too in the manner and to the extent prescribed and approved by the FRANCHISOR / PSO.

2. From above, it is crystal clear that no rent agreement was entered into between the parties in respect of subject Tuck Shop, but, in fact, the PSO had granted Franchise in favour of the applicant in respect of the Tuck Shop, meaning thereby that the status of the applicant was not that of a "Statutory Tenant" as provided in the Sindh Rented Premises Ordinance, 1979 but she was merely a "Licensee".

3. Besides, the term "franchise" has been defined in Section 12(2) of The Federal Excise Act, 2005 as under:

"(12a) "franchise" means an authority given by a franchiser under which the franchisee is contractually or otherwise granted any right to produce, manufacture, sell or trade in or do any other business activity in respect of goods or to provide service or to undertake any process identified with franchiser against a fee or consideration including royalty or technical fee, whether or not a trade mark, service mark, trade name, logo, brand name or any such representation or symbol, as the case may be, is involved:"

1. In view of above, it can safely be held that a "Franchisee" has got the status of a "Licensee" and not that of a "tenant". This fact is also strengthened from the contents of the Franchise Agreement, as quoted above. Needless to emphasize that it is a settled law that a "Licensee" cannot be equated with a "Tenant". In this connection, reference may be made to the case of Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others, reported in PLD 1963 [WP] Lahore 418, wherein it was held as under:

"6. In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties, according to Halsbury's Laws of England, Third Edition, Volume 23, paragraph 1022. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or by describing it as such. The relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement; nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only, if from the whole document it appears that it was intended merely to confer a licence. A licence is normally created where a person is granted the right to use premises without becoming entitled to ex elusive possession thereof or the circumstances and conduct of, the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land. If the agreement is for the use of property in a certain way and on certain terms, while the property remains in the possession and control of the owner, the agreement will operate as a licence even though the agreement may employ words appropriate to a lease. The instance of agreements which have been held in English Courts to create licences include the letting of bookstalls on a railway platform, letting of space for a stall in an exhibition, permission to use a shed for particular purposes, an exclusive right to put pleasure boats on a canal, power to dig for fire-clay, liberty to fasten a coal-halk to a mooring in a river, liberty to lay and stack coal on land, liberty to search and dig for coal and permission to erect or affix advertisements, etc., etc. 'The relationship of landlord and tenant arises as a rule when one party confers on another the right to the exclusive possession of land, mines or buildings for a time, which is either subject to a definite limit originally, as in the case of a lease for a term of years or which, though originally indefinite, can be made subject to a definite limit by either party, as in the case of a tenancy from year to year. As a rule, there is incident to it the right to receive from the tenant payment for the use of the property in the shape of rent. The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy ; but it is a consideration of the first importance."

It was further held in the said case:

"16. ...A "tenant" means under section 2(i) any person by whom or on whose account rent is payable for a building or rented land, and "rented land" means under section 2 (f) any land let separately for the purpose of being used principally for business or trade. "Landlord" means under section 2(c) any person, for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person. These are no doubt words of wide import, but rent is payable by a tenant in relation to transfer of an interest in and a right to enjoy a particular land, which is not the case here. What has been conferred here is a permission to do something on the land, i.e., to do catering business on the land, which is a licence. The difference is no doubt subtle but it is not difficult to see it. The words 'landlord' and 'tenant' have to be interpreted in the like manner. I cannot, therefore, hold that the petitioner is a 'tenant' within the meaning of section 2 (i) of the Ordinance, and has its protection."

1. In the case of Royal Foreign Currency v. The Civil Aviation Authority and another, reported as 1998 CLC 374 [Karachi], while relying upon the case of Ashfaq Hussain and others v. Karachi Municipal Corporation and others (PLD 1957 [W.P.] Karachi 918), it was held as under:

"8. …….It was further held that a license is a mere voluntary suspension of the licensor's right to treat certain acts as wrongful and that no person can put up any cabin on the street except with the permission of the Municipal Corporation and the keeping of such cabin is lawful so long as permission continues. In the present case, it is an admitted position that the premises of Quaid-e-Azam International Airport belongs to Civil Aviation Authority and no person or authority can put up any cabin or establish a shop in the said premises without the permission of the Civil Aviation Authority. The difference between a lease and a license was also considered by the Hon'ble Supreme Court of Pakistan in the case of Abdullah Bhai and others v. Ahmad Din [PLD 1964 SC 106]. In this case, it was held by the Hon'ble Supreme Court that the line of demarcation between a lease and a license is some time very thin. It was held that the right transferred through the lease amounts to right in rem while the right transferred through the license as provided under section 52 of the Easements Act is only a right in personam whereby the licensor agrees not to interfere with the doing of particular acts on a property which is in possession of a licensee. I am of the view that the principle laid down in the cases of Abdullah Bhai and Ashfaq Hussain is fully attracted in the circumstances of the present case."

1. In the case of Messrs Sign Source v. Messrs Road Trip Advertisers and another (2005 CLC 1982 [Karachi]), it was held as under :

"9. The essential features of license are three folds, which are as under:---

(1) A license is not connected with the ownership of any land but creates only a personal right or obligation hence it cannot be assigned.

(2) It is purely permissive right arising only by permission, express or implied, and not by adverse exercise or in any other way, hence it is generally revocable at the will of the grantor.

(3) It only legalizes a certain act, which would otherwise be unlawful and does not confer any interest in the property itself in or upon or over which such act is allowed to be done.

10. Thus, a license is a personal right granted to a person to do something upon immoveable property of the grantor, and does net amount to the creation of an interest in the property itself. It is purely a permissible right and is personal to the grantee. It creates no duties and obligations upon the person making the grant and is, therefore, revocable in certain circumstances expressly provided for in the Act itself. The license has no other effect than to confer a privilege, upon the licensee to go upon the land and to do a certain act, which would, in the absence of such license, be unlawful."

1. In the case of Mohiuddin Khan v. Messrs State Life Insurance Corporation of Pakistan and another, reported in 2017 YLR Note 199 [Sindh]), after discussing a plethora of judgments on this point, it was held as under:

"54. From the License Agreement dated 25.8.1985 [Exh.P-'4/3'], the relationship between the parties is very clear. The License Agreement dated 25.8.1985, expressly specifies/shows the intention of parties viza-viz. creation of relationship as of licensor and licensee between the Defendant No.1 and the Plaintiff and not relationship of a landlord and tenant as claimed. The License Agreement dated 25.8.1985, no doubt, is a License Agreement and not a tenancy/lease agreement. It is also an established position that Plaintiff was allowed only to use the 'subject plot' for car parking. Under [Exh.P-'4/3'] no right was conferred upon the Plaintiff to assign sublet or part with the possession of the 'subject plot' to anyone else. In view of this position, no any exclusive interest/right was created in favour of the Plaintiff over the 'subject plot' save and except in terms of License Agreement dated 25.8.1985 [Exh.P-'4/3']. The Plaintiff neither through his pleadings nor his evidence has established that the License Agreement dated 25.8.1985 [Exh.P-'4/3'], in any manner, was meant for to create' a 'relationship' of 'landlord' or 'tenant' between the parties. The relationship between the parties [i.e. Defendant No.1 and the Plaintiff], as established from the record, is of a 'licensor' and 'licensee' and not of 'landlord' and 'tenant' as claimed by the Plaintiff."

1. Even a Full Bench of Honourable Supreme Court in the case of Combind Investment (pvt.) Ltd. v. Wali Bhai and others, (PLD 2016 Supreme Court 730), made similar observations to the following effect:

"In contrast to such tenancies, where an accommodation is let out to a guest of a hotel, the same does not create in his favour any kind of interest in the accommodation under his use as he is not given exclusive possession of the accommodation for his enjoyment. He is merely a licensee. Proprietor of the Hotel or his agent enjoys the right to refuse or deny accommodation to a hotel guest if he does not pay the daily occupancy rate or violates any of the rules of the hotel. This being so, a guest of a hotel can be simply locked out of his room and expelled as he is merely a licensee enjoying no protection under the tenancy law. It is the degree of permanency of the occupancy rights that determines the status of a person whether as a tenant or a licensee. It would be nonsensical to imagine that the hotel management has to first follow the eviction process provided in rent law that governs landlord and tenant relationship."

(emphasis is supplied for sake of convenience)

1. In view of above legal position, it can safely be held that the applicant was merely a "Franchisee" / "Licensee" and not a "statutory tenant", therefore, she was not competent to initiate proceedings under the Illegal Dispossession Act, 2005.

2. It is also worthwhile to point out at this juncture that according to the applicant / complainant on 17-11-2022 respondents Nos.1 to 5 had forcibly obtained signature of her husband over an agreement to vacate the shop on which a Civil Suit bearing No.1437/2022 was filed and subsequently on 29.12.2022, the respondents forcibly took over possession of the subject premises. However, the applicant has herself admitted that the plaint in the above suit was rejected by the Court of learned Senior Civil Judge-IV, Karachi South vide order dated 25.02.2023. It also seems to be strange that although the complainant claimed her possession over the subject premises but the civil suit was filed by her husband Javed Ali and not by the applicant wherein he claimed his possession over the subject shop and on this basis he obtained interim order dated 02.12.2022, however the same was recalled and the plaint was rejected under Order VII Rule 11 C.P.C. Besides, applicant had also filed Civil Suit No.368 of 2017 which was returned to her in terms of Order VII Rule 10 C.P.C. vide order dated 08.09.2017.

2025 P Cr. L J 1038

[Sindh]

Before Muhammad Karim Khan Agha, J

Naveed John Bhatti and others---Appellants

Versus

The State---Respondent

Criminal Jail Appeals Nos. 437 and 438 of 2019, decided on 1st October, 2024.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd,robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Slight delay in lodging FIR plausibly explained---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---First Information Report was lodged within a few hours of the incident---Slight delay in lodging the FIR had been fully explained by the fact that the complainant was informed over the phone about the shooting of his relative who then rushed to his relative's office where he found him dead---Complainant arranged transportation of the body to the hospital with the assistance of the police and thereafter gave his S.154 Cr.P.C statement which later became the FIR against unknown persons---Admittedly FIR was based on hearsay evidence however the fact that complainant did not want to falsely implicate the accused in the case was borne out by the fact that he lodged the FIR against unknown persons---Appeal against conviction was dismissed, in circumstances.

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

----S. 164---Judicial confession, retraction of---Scope---Retracted judicial confession could be legally admissible and used against its maker in certain circumstances.

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

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

----Ss. 302(b), 397 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd,robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Confession, retraction of---Scope---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---In the present case, when the retracted judicial confessions were placed in the context of the prosecution case there was no evidence to suggest that they were not voluntarily made or made through inducement or coercion and their object was to tell the truth---Moreover, it was found that all procedural safeguards in recording each of the judicial confessions had been fully complied with and as such reliance could be placed on each of the judicial confessions---Admitted position was that appellant worked in the office of the deceased as it was he who was named in the FIR as being present at the time of the incident and narrating the facts of the incident to the complainant about the murder and robbery by the two unknown persons---Therefore, it initially appeared to the police that said appellant was perhaps a witness and was not arrested---However when the Supreme Court ordered reinvestigation the starting point for the new investigation team was appellant as he was the only person present at the time of the robbery and murder---Moreover, it would also have been impossible for the other appellants to know that the deceased kept a safe in his office without said appellant telling them as other appellants had nothing to do with the office of deceased whereas appellant in question was a trusted employee---Hence when the new investigative team arrested appellant under S.54, Cr.P.C, for suspicion of committing the crime, he cracked and confessed about the robbery and the murder---Having confessed to the police about committing the crime appellant also led the police to his house where on his pointation a saving certificate of Rs. 10 lacs in the name of the deceased was recovered which fully linked him to the robbery and murder---Appellant also implicated other appellant in the crime who got recovered the laptop of deceased which was picked out at an identification parade---Said appellant then implicated his bother/appellant in the crime whom the police arrested on his pointation from whom another saving certificate of 10 lacs was recovered in the name of the deceased which again linked him to the robbery and murder---An unlicensed pistol was also recovered from said appellant within six days after their arrest---All three appellants confessed to the crime before the Judicial Magistrate---Appeal against conviction was dismissed, in circumstances.

Joygun Bibi v. the State PLD 1960 SC 313; Sikandar Ali v. The State 2020 YLR 2453; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Muhammad Amin v. The State PLD 2006 SC 219; Ansar and others v. The State 2023 SCMR 929 and Ali Taj v. The State 2023 SCMR 900 ref.

Mst. Joygun Bibi v. The State PLD 1960 SC 313; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Azeem Khan v. Mujahid Khan 2016 SCMR 274; Bahadur v. State PLD 1996 SC 336 and Manjeet Singh v. State PLD 2006 SC 30 rel.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd,robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---Empty recovered at the crime scene was sent for Forensic Science Laboratory along with the pistol recovered from appellant, and it produced a positive Forensic Science Laboratory Report---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd,robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---Medical evidence also fully supported the prosecution case as the deceased received two firearm injuries from close range as was evident by the blackening around the wounds during the course of deceased putting up resistance to the robbery---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd,robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Police witnesses, evidence of---Scope---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---Police witnesses had no enmity or ill-will towards any of the appellants and had no reason to falsely implicate them in the case by foisting the recoveries on the appellants---In such circumstances the evidence of the police witnesses could be fully relied upon---Furthermore evidence of the police witnesses was not dented during lengthy cross-examinations---Appeal against conviction was dismissed, in circumstances.

Mushtaq Ahmed v. the State 2020 SCMR 474 rel.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd,robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---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 appellants---Evidence of the witnesses provided a believable corroborated unbroken chain of events from appellant confessing to the crime to the recovery of one of the saving certificates on his pointation to other appellant confessing to the crime and the recovery of the deceased's laptop from him, to the arrest of another appellant on his brother's pointation and confessing to the crime and the recovery of the other saving certificate from him along with an unlicensed pistol which when matched with the empty recovered at the scene of the crime led to a positive Forensic Science Laboratory Report---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.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Motive proved---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---Motive for the crime was robbery which escalated into murder when the deceased resisted the robbery at his office which tied in with the confessions of the appellants---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Non-association of private witnesses at the time of arrest and recovery---Accused were charged for committing murder of the cousin of complainant by firing and robbing saving certificates and a laptop---Fact that no private person was a mashir, was not of huge significance in this day and age when it has virtually become a judicially recognized fact that private persons do not want to associate themselves with such like crimes---Appeal against conviction was dismissed, in circumstances.

Nemo for Appellant (in Appeal No. 437 of 2019).

Barrister Iftikhar Ahmed Shah assisted by Raja Zeeshan and Muhammad Naeem Awan for Appellants (in Criminal Jail Appeal No. 438 of 2019).

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General Sindh for the State.

Muhammad Farooq for the Complainant.

Date of hearing: 24th September, 2024.

Judgment

Muhammad Karim Khan Agha, J.---By this common judgment, I intend to dispose of both the Cr. jail Appeals filed by Appellants Naveed John Bhatti, Sajid Ahmed Khan and Zahid Ahmed Khan, who were convicted and sentenced by the 1st Additional Sessions Judge/Model Criminal Trial Court (south) Karachi vide Judgment dated 15.05.2019 as under:-

1. Accused Naveed John Bhatti S/o William John Bhatti, Zahid Ahmed Khan S/o Rahat Noor and Sajid Anmed Khan S/o Rahat Noor are convicted for committing murder of deceased Murtaza Chinoy punishable under section 302(b), read with section 34, P.P.C and sentenced to suffer Life Imprisonment and each of them is directed to pay compensation of Rs. 5,00,000/(Rupees five Lacs) under section 544-A Cr.P.C. to the legal heirs of deceased. In case of failure in payment of compensation, they would also suffer SI for (One year) 01 year more.

2. Accused Naveed John Bhatti S/o William John Bhatti, Zahid Ahmed Khan S/o Rahat Noor and Sajid Ahmed Khan S/o Rahat Noor are also found guilty of offence punishable under section 397, P.P.C, therefore, they are sentenced to undergo R.I. for Seven (07) years and each of them is directed to pay a fine of Rs.10,000/or in default thereof, they would also suffer S.I. for Six (06) months more.

Benefit of Section 382-B Cr.P.C is also extended to the accused persons. Above sentences would run concurrently.

1. The brief facts of the FIR lodged by complainant Suleman Shareef Khan through his 154, Cr.P.C. statement recorded on 25.08.2011, at about 1500 hours at the spot are that on the said date, he was present at his house at about 1220 hours, when servant Ashfaq of deceased Murtaza Chinoy informed him on phone that his cousin is no more alive and asked him to reach in his office. On receipt of such information, the complainant rushed to the office of the deceased situated at 2nd Floor, Zamzama Commercial Area, Phase-V, DHA, Karachi and saw the police in the street. He went inside the office and saw the deceased in pool of blood lying on the floor where Naveed John, office peon of the deceased, told him that today i.e. 25.08.2011, there was knocking at door of the office, in response he opened the door and found two persons in pant shirt aged about 28/30 years having black bag, who told him to inform the deceased that they have come on behalf of Shahzad Chawla. The complainant also stated that said office peon also informed him that he informed the deceased whereupon he expressed that he did not know them, in the meanwhile by pushing the door they entered inside room and started abusing the deceased on which he forbade them and thereafter they fired upon the deceased due to which he became injured and the culprits fled away from the scene, however, according to said Naveed John he can identify them if appeared before him. Therefore, the complainant claims against two unknown culprits for committing murder of his cousin Murtaza Chinoy for unknown reason.

2. After usual investigation the matter was challaned and the appellants were sent up to face trial. They pleaded not guilty and claimed their trial.

3. In order to prove these cases, the prosecution examined 10-PWs and exhibited various items and other documents. The appellants recorded their statements under Section 342 Cr.P.C. whereby they claimed that they were innocent. However, they did not give evidence on oath or call any witness in support of their defence.

4. After appreciating the evidence on record, the learned trial Court convicted and sentenced the appellants as set out earlier and hence, the appellants have filed these appeals against their convictions and sentences.

5. 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.

6. Learned counsel for the appellants has contended that the appellants are completely innocent and have been falsely implicated in this case by the police in order to show their efficiency; that there was no eye-witness to the murder; that the appellants judicial confessions were not made voluntarily and were later retracted and as such the same should be discarded; that the recoveries from each of the appellants were foisted on them; that there are major contradictions in the evidence of the PWs and as such there evidence cannot be safely relied upon and thus for any or all of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt.

7. On the other hand learned Additional Prosecutor General appearing on behalf of the State and the complainant have fully supported the impugned judgment. They have contended that although this is a case of circumstantial evidence but the prosecution has been able to prove its case against the accused based on the evidence of the PW's, the later retracted judicial confession of the accused which could be safely relied upon as being truthful; the recoveries of a robbed item from each of the accused as well as an unlicensed pistol recovered from appellant Zahid an empty of which recovered at the crime scene lead to a positive FSL report when matched with the recovered pistol; that the motive for the murder was robbery; that the medical evidence supported the prosecution case and as such the appeal should be dismissed. In support of their contentions they placed reliance on the cases of Joygun Bibi v. The State (PLD 1960 SC 313), Sikandar Ali v. The State (2020 YLR 2543), Sh. Muhammad Amjad v. The State (PLD 2003 SC 704), Muhammad Amin v. The State (PLD 2006 SC 219), Ansar and others v. The State (2023 SCMR 929) and Ali Taj v. The State (2023 SCMR 900).

8. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learned counsel for the appellants, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. Based on my reassessment of the evidence of the PWs, the place of the recovery of the dead body, the medical evidence, the blood and empty found at the crime scene 1 find that the prosecution has proved beyond a reasonable doubt that Muhammed Murtaza Chinnoy (the deceased) was murdered by firearm and his office robbed with his safe containing savings certificates of RS. 10 lacs each and laptop on 25.08.2011 at about 1130 hours at/from his office at 2nd floor plot No.3-C Lane No.9, Zamzama commercial area Phase V DHA Karachi.

10. The only question left before me therefore is who murdered and robbed the deceased by firearm at the said time, date and location?

11. After my reassessment of the evidence I find that the prosecution has proved beyond a reasonable doubt the charge against the appellants for which they were convicted for the following reasons keeping in view that each criminal case must be decided on its own particular facts and circumstances;

(a) That the FIR was lodged within a few hours of the incident. The slight delay in lodging the FIR has been fully explained by the fact that the complainant was informed over the phone about the shooting of his relative who then rushed to his relative's office where he found him dead. He arranged transportation of the body to the hospital with the assistance of the police and thereafter gave his S.154 Cr.P.C statement which later became the FIR against unknown persons. Admittedly his FIR is based on hearsay evidence however the fact that he did not want to falsely implicate the accused in this case is borne out by the fact that he lodged the FIR against unknown persons

(b) Admittedly there is no eye-witness to the murder and robbery and the main piece of evidence against the appellants are their retracted judicial confessions and therefore the question arises whether I can safely convict on the basis of the retracted judicial confessions of the appellants. I set out the retracted judicial confessions of each of the appellants for ease of reference below;

CONFESSIONAL STATEMENT under section 164 Cr.P.C. of NAVEED JOHN BHATTI

Question: What you have to say?

Answer: I along with accused Zahid and Malik Rehan Farooq made a plan in order to commit loot to Chinay Sahib and the said plan was occurred in our office. After looting to Chinay Sahib, they having tied me went away from the office. I used to do work in the office of Chinay Sahib as Peon. I had called Zahid and Sajid through phone. Thereafter Zahid and Sajid came inside the office of Chinay Sahib and started to commit loot and demanded money from Chinay Sahib, but he made resistance, upon which, accused Zahid made fire shot with his pistol upon him, resulting which, bullet hit at his neck. After that, Zahid and Sajid escaped away from the spot and I stopped there. After that, I moved him, but he was not moving. Thereafter, I called driver of Chinay Sahib through phone and he said me don't fear and inform said incident to 15 Police. Thereafter, Police and Edhi official reached at the spot and took away Chinay Sahib. This much is my confession.

Sd/-Accused

CONFESSIONAL STATEMENT under section 164 Cr.P.C. of SAJID AHMED

Question: What you have to say?

Answer: The accused Zahid Ahmed is my real brother. The accused Farooq and Naveed made plan in order to commit robbery to Chinay Sahib, Farooq had told to my brother Zahid that there are some money, laptop and precious mobile phone in the office of Naveed, and which money will be looted, same will be distributed with each other. After that, Naveed made phone call to Farooq and stated him to send two persons. After that, I and Zahid came at the office and got opened the door, Naveed opened the door and he said that having put pistol upon him and to take inside office. The Advocate Chinay Sahib had sat inside the office and quarrel occurred with each other and my brother Zahid made fired shot with pistol upon Chinay Sahib, which hit at his neck and he fell down. After that, we escaped away from the spot.

Sd/- Accused.

CONFESSIONAL STATEMENT under section 164 Cr.P.C. of ZAHID AHMED

Question: What you have to say?

Answer: On 25-08-2011 at about 1115 hours, I and my companion Sajid went to the office of slain Chinay Sahib called by the Naveed Jan in order to commit dacoity where quarrel occurred with Chinay Sahib and 1 suddenly made fired with pistol which hit at the neck of Chinay Sahib, resulting which he fell down on the spot. We had looted one laptop, two Saving Certificates of Rs.10 Lac ench and cash about Rs.50 to 60 thousand from the office of Chinay Sahib. After that, police recovered aforesaid articles from our possession. This much is my confession.

Sd/-Accused

1. It is settled law that a retracted judicial confession can be legally admissible and used against its maker in certain circumstances. In the case of Muhammad Amin v. The State (PLD 2006 SC 219) it was held at P.224 Para 9 as under;

"9. There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak) 313 as under:-

"We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."

10. Similarly in the case of the State v. Minhun alias Gul Hassan PLD 1964 SC 813 this Court has observed as under:-

"As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement." (bold added)

1. Thus, the court laid down a two pronged test as under (a) whether the retracted judicial confession appears to have been made voluntarily, without any inducement, duress or coercion and (b) was made with the object to state the truth.

2. Notably it was also held that if both (a) and (b) were satisfied even if there were some irregularities in recording of a confession it would not warrant disregarding of the same. In my view however following the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) such irregularities must be of a minor nature and must not have detracted from either the voluntariness or truthfulness of the confession.

3. In the case of Bahadur v. State (PLD 1996 SC 336) although it was suggested that a judicial confession alone can be made the basis of conviction the safer course was to look to see if there was any corroborative material available to determine its truthfulness.

4. In the case of Manjeet Singh v. State (PLD 2006 SC 30) a further requirement seemed to be added that in determining the truthfulness of the confession it had to be placed within the context of the whole of the prosecution evidence/case.

5. In my view therefore I am not in any doubt that a retracted confession before a magistrate can be the basis of convicting in a capital case however it must be;

(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

(a) 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 affected the voluntariness or truthfulness of the confession.

I find that when the retracted judicial confessions are placed in the context of the prosecution case there is no evidence to suggest that they were not voluntarily made or made through inducement or coercion and their object was to tell the truth.

I also find that all procedural safeguards in recording each of the judicial confessions have been fully complied with and as such I place reliance on each of the judicial confessions.

The next question is whether there is any corroborative/supportive evidence in relation to the retracted judicial confessions although admittedly corroboration tends to be a rule of caution however in cases of retracted judicial confessions I consider such corroboration /supportive evidence to be of importance/significance especially in a capital case.

I find the following corroborative/supportive evidence to the retracted judicial confessions of the appellants.

(d) That it is an admitted position that appellant John worked in the office of the deceased as it was he who is named in the FIR as being present at the time of the incident and narrating the facts of the incident to the complainant about the murder and robbery by the two unknown persons. Initially it therefore appeared to the police that John was perhaps a witness and was not arrested. However when the Supreme Court ordered a reinvestigation the starting point for the new investigation team was John as he was the only person present at the time of the robbery and murder. It would also have been Impossible for the other appellants to know that the deceased kept a safe in his office without John telling them as these two other appellants had nothing to do with the deceased office whereas John was a trusted employee and hence appellant John and the other appellants hatched the robbery of the deceased who was killed on resistance by appellant Zahid. Hence when the new investigative team arrested John under S.54 Cr.P.C for suspicion of committing the crime he cracked and confessed to the robbery and the murder.

(e) Having confessed to the police to committing the crime John also lead the police to his house where on his pointation a saving certificate of RS. 10 lacs in the name of the deceased was recovered which fully linked him to the robbery and murder the saving certificate being his share of the proceeds of crime. Appellant John also implicated appellant Sajjad in the crime who the police recovered the deceased laptop from which was picked out at an identification parade as the laptop belonging to the deceased which linked appellant sajjad to the robbery and murder. Appellant Sajjid then implicated his bother appellant Zahid in the crime who the police arrested on his pointation from whom another saving certificate of 10 lacs was recovered from in the name of the deceased which again linked him to the robbery and murder. An unlicensed pistol was also recovered from appellant Zahid. Within 6 days after their arrest all three of the appellants confessed to the crime before the judicial magistrate in the terms reproduced earlier.

(f) When the empty recovered at the crime scene was sent for FSL along with the pistol recovered from appellant Zahid it produced a positive FSL report.

(g) That the medical evidence also fully supports the prosecution case in that the deceased received two firearm injuries from close range as evidenced by the blackening around the wounds during the course of him putting up resistance to the robbery.

(h) That the police PW's had no enmity or ill-will towards any of the appellants and had no reason to falsely implicate them in this case for example by foisting the recoveries on the appellants and in such circumstances it has been held that the evidence of the police PWs can be fully relied upon. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474). As such I place reliance on the evidence of the police witnesses whose evidence was not dented during lengthy cross-examinations.

(i) That all the PW's 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 appellants. 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 appellant John confessing to the crime to the recovery of one of the saving certificates on his pointation to appellant Sajjad confessing to the crime and the recovery of the deceased laptop from him to the arrest of Zahid on his brother Sajad's pointation and him confessing to the crime and the recovery of the other saving certificate from him along with an unlicensed pistol which when matched with the empty recovered at the scene of the crime lead to a positive FSL report.

2025 P Cr. L J 1062

[Sindh (Mirpurkhas Bench)]

Before Muhammad Saleem Jesssar, J

Munawar alias Munni and others---Appellants

Versus

The State and others---Respondents

Criminal Appeals Nos. S-45 (Old No. 08 of 2023) and S-46 of 2024 (Old No. 10 of 2023), decided on 6th June, 2024.

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

----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Discrepancies in the statements of witnesses---Accused were charged for committing robbery with the complainant party and also causing injuries to three persons---Complainant in his cross-examination had admitted that though it was mentioned in the FIR that accused had made straight firing but it was not mentioned as to who and how many fires were made---Though the place of incident (shop) was surrounded by many houses as well as shops yet none from the surrounding was arrayed as a witness---No blood stained clothes of the injured were produced by the Investigating Officer---One accused "SC" was arrested but later was released by the police being suspicious---Injured witness/watchman had deposed in his examination-in-chief that on 03.12.2020 he came to the town for his personal work, meanwhile he found three accused in the shop, who after committing robbery, rushed out; upon resistance, one of the accused caused firearm shots on him which hit him on his chest, after which, he fell down---Said witness further admitted that he was not examined by the police---However, injured witness had identified the accused "D" before the Trial Court, however, he could not identify the remaining accused---In his cross-examination, said witness admitted that before the incident, accused "D" was not known to him and his name was disclosed to him by a shop owner---Injured witness admitted in his cross that he inflicted lathi blows to accused "D"; however, same lathi was not secured by the police nor he produced same as case property, in contravention of his evidence---In his cross-examination, shop owner deposed that names of accused were disclosed to him by the police---Said witness further admitted in his cross that on 16.12.2020 he along with complainant went to District "MK" and when they reached at Police Station, accused "D" was found in the lock up of that Police Station---On 21.12.2020, accused "D" was brought to Police Station from jail, and at that time he along with complainant and other witness went to see accused "D" at the Police Station before the identification parade---After incident 15/20 persons gathered at the spot and name of accused "D" was disclosed to him by the police---Another witness had deposed in his examination-in-chief almost same facts as were deposed by witnesses---Police witness admitted in his cross-examination that he did not produce daily diary entry dated 23.01.2021 nor he verified the ownership of alleged recovered motorcycle from Excise Department---He even did not produce such entry showing his departure from Police Station to Civil Hospital for collecting final medical certificate---Investigating Officer admitted in his cross-examination that contents of the memo showed that the cash amount recovered on the pointation of accused "M" was kept by him in a plastic shopper but the colour of said shopper was not mentioned in the memo and said plastic shopper was not available before the Court---Motorcycle was recovered from the land of one "YQ"; however, said "YQ" was not made as witness in instant case nor he had been arrayed as an accused in the crime---Admittedly, Investigating Officer had not recorded the statement of owner of the motorcycle---Admittedly, witnesses did not disclose name of accused "M" in their statements under S.161, Cr.P.C; however, at belated stage they were examined under S.162 Cr.P.C whereby they disclosed name of accused "M"---Said accused was not subjected to identification test, though Investigating Officer made entry into Roznamcha/daily diary, however, he did not produce such copy before the Court---Appeal against conviction was allowed, in circumstances.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 ref.

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

----Ss. 394, 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---Record showed that the witnesses who had picked out accused "D" in the identification parade had already seen him in the police lock-up---No features of the accused were given, and no specific role was assigned to each accused in the commission of alleged offence by the witnesses who allegedly picked out the accused in the identification parade---There was also delay in holding of identification parade---Admittedly position no identification parade was held in respect of accused "M" although he was also not previously known to the complainant and other alleged eye-witnesses of the incident---In case it was disclosed in the FIR that the accused were not known to the alleged eye-witnesses, it was incumbent upon the Investigating Officer to get the arrested accused identified through said eye-witnesses in a proper identification parade---In such situation identification parade would become essential which was to be conducted strictly in accordance with law after completing legal requirements---Appeal against conviction was allowed, in circumstances.

Mehboob Hassan v. Akhtar Islam and others 2024 SCMR 757; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Farman Hussain's case PLD 1995 SC 1; Ismail's case 1974 SCMR 175 and Farman's case 1997 SCMR 971 rel.

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

----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Non-production of daily diaries---Fatal to the prosecution case---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---Investigating Officer as well as other Police Officials in their respective evidence had admitted that relevant roznamcha entries/daily diaries were not produced before the Trial Court during course of evidence---Such lapse put dent in the prosecution case---Such facts were fatal to the prosecution case---In absence of any roznamcha entry, it becomes suspicious as to whether, Investigating Officer or police party, as the case may be, had in fact left the police station for the place of arrest, incident and/or recovery or not---Appeal against conviction was allowed, in circumstances.

Muhammad Akram v. State 2020 YLR Note 94 rel.

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

----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Supplementary statement---Scope---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---In the FIR as well as in his evidence the complainant, and three alleged eye-witnesses in their respective evidence, had categorically stated that in all three accused had committed the alleged offence; however, in their supplementary statements recorded subsequently under S.162, Cr.P.C they had also involved accused "M" and others---Investigating Officer in his cross-examination categorically admitted that the witnesses did not disclose the name of accused "M" in their statement under S.161, Cr.P.C, however, at later stage, their statements were recorded under S.162, Cr.P.C. in which they disclosed the name of accused---As admitted by the Investigating Officer, the supplementary statements were not produced by him before the Trial Court, nor had he deposed the date such statements were recorded, thus no legal sanctity could be attached to such supplementary statements---Appeal against conviction was allowed, in circumstances.

Faisal Ahmad v. The State 2018 YLR 1269 rel.

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

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

State v. Bashir and others PLD 1997 SC 408; Sarmad Ali v. the State 2019 MLD 670 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

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

----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Non-recording of statement of injured witness/star witness---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---Admittedly, the blood stained clothes of a injured were not secured nor were produced by the Investigating Officer before the Trial Court---Injured witness had also admitted in his examination-in-chief that police did not record his statement---Non-recording of statement of a witness particularly who is injured and is a star witness of the prosecution for a considerable time, shatters the entire prosecution version---Appeal against conviction was allowed, in circumstances.

Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 and Yasir Parvez and others v. The State and others 2023 YLR 2164 rel.

(g) Criminal trial---

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

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

(h) Criminal trial---

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

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mian Taj Muhammad Keerio for Appellants (in Criminal Appeal No. S-45 of 2024).

Ghulamullah Chang for Appellants (in Criminal Appeal No. S-45 of 2024).

Abdul Hafeez Mari for Appellant (in Criminal Appeal No. S-46 of 2024).

Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh for the State.

OM Parkash and Afzal Karim Virk for the Complainant.

Date of hearing: 6th June, 2024.

Judgment

Muhammad Saleem Jessar, J.---By means of this single judgment, I propose to dispose of captioned criminal appeals, as same have arisen out of one and same judgment passed by learned Addl. Sessions Judge-I/MCTC, Umarkot (trial Court).

1. Through these Criminal Appeals, appellants / accused Dilbar alias Allah Bachayo Mari, Munawar alias Munni Khaskheli, Hyder Lanjo and Shah Nawaz Lanjo have assailed judgment dated 05.01.2023 whereby the appellants were convicted for the offence under Section 394 P.P.C and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 50,000/- each and in case of default they were ordered to suffer simple imprisonment for six months more. However, benefit of Section 382-B Cr. P.C. was extended to all the accused. By the same judgment, absconding accused namely Mithal alias Dado Shar and Sadam Birohi were declared as proclaimed offender and the case against them was ordered to be kept on the dormant file till their arrest.

2. Brief facts of the prosecution case, as per FIR lodged by complainant Ahmed Saand, are that he and PWs Abdul Khalique Kalar and Qazi Muhammad Nooh Saand are employed at Kiryana Shop of Seth Ghulam Fareed Memon. On 03.12.2020 all employees and seth Ghulam Fareed Memon along with others was sitting at the shop, when at about 1620 hours, one 125 Motorcycle stopped in front of their shop, wherefrom three persons alighted and took out pistols. Out of them, two persons entered in the shop, while one person stood outside the shop. All the accused could be identified if seen again. The accused who entered into the shop, kept all the PWs hostage on the force of weapons and threat of murder. Then, they robbed Rs. 7000/- from complainant Ahmed, one Mobile phone from Qazi Muhammad Nooh, while another accused caused pistol butt blows at the head of Ghulam Fareed Memon and Abdul Khalique Kalar and robbed Rs. 800,000/- already counted by Seth Ghulam Fareed, so also robbed a Mobile Phone kept there by Haji Abdul Rehman Memon, father of seth Ghulam Fareed Memon. Meanwhile, watchman Muhammad Niaz Gishkori came there, who tried to catch the accused standing outside the shop, whereupon the accused who were inside the shop, walked out and made straight fire upon Muhammad Niaz Gishkori, who sustained fire arm injury and fell down. Then, all accused boarded on their 125 motorcycle and fled away towards Gu'r Mandi alongwith robbed property. Thereafter, the injured PWs were shifted to Kunri Hospital, where doctors referred injured Muhammad Niaz Gishkori to Hyderabad Hospital. After leaving injured Muhammad Niaz at Hyderabad Hospital, the complainant went to police station and lodged FIR, in above terms.

3. After registration of FIR, the case was investigated by Inspector Atif Hussain Shah, who visited place of incident, got prepared sketch of dacoits, secured 125 Motorcycle abandoned by the accused. Then upon receiving information of accused Dilbar Mari's involvement in the alleged offence through SSP Mirpurkhas, he went to Mirpurkhas and formally arrested accused Dilbar Mari, interrogated him who disclosed names of co-accused Munawar alias Munni, Hyder Lanjo, Shah Nawaz Lanjo, Sadam Brohi and Mithal alias Dodo Shar. He then got conducted identification parade of the accused under the supervision of concerned Judicial Magistrate. The police got recovered part of robbed amount at the pointation of arrested accused Munwar alias Munni, so also got recovered a part of robbed amount and mobile phone on the pointation of accused Dilbar Mari. He interrogated arrested accused Hyder Lanjo and Shah Nawaz Lanjo and got recovered a part of robbed amount on their pointation, so also recovered a motorcycle on the pointation of accused Shah Nawaz Lanjo, collected call data reports of accused; besides, collected criminal record of accused Dilbar Mari and Munawar alias Munni Khaskheli. After completing investigation, submitted final challan before the concerned Court showing accused Dilbar alias Allah Bachayo Mari, Munawar alias Munni Khaskheli, Hyder Lanjo and Shah Nawaz Lanjo in judicial custody, while accused Sadam Hussain Birohi and Mithal alias Dado Shar as absconders.

4. The concerned Magistrate after completing legal formalities, supplied copies of case papers to accused vide receipt Ex.04. Thereafter, case was sent-up to the Court of Sessions Judge, Umerkot who assigned the same to the trial Court for disposal according to law.

5. A formal charge was framed against accused at Ex….05, to which they pleaded not guilty and claimed trial vide their pleas recorded at Ex…5-A to 05-D respectively.

6. The prosecution examined Dr. Abdul Khalique at Ex….06, who produced police letter and medical certificates of injured PWs as Ex….06-A to 06-E respectively. PW-2 complainant Ahmed Saand was examined at Ex…..07, who produced FIR as Ex……07-A and memo of identification parade as Ex….7-B. PW-3 injured Niaz Muhammad was examined at Ex….08. PW-04 Ghulam Fareed was examined at Ex….09, who produced memo of identification as Ex…..09-A. PW-05 Abdul Khalique was examined at Ex…..10, who produced memo of identification parade as Ex…10-A. PW-6 Qazi Muhammad Nooh was examined at Ex…11, who produced memo of identification parade as Ex….11-A. PW-07 ASI Umed Ali was examined at Ex...12, who produced memo of injuries and three daily diary entries as Ex….12-A to 12-D respectively. PW-8 DSP Abdul Sattar was examined at Ex…..13, who produced a daily diary entry as Ex…..13-A. PW-09 Inspector Tufail Ahmed was examined at Ex….14, while PW-10 mashir PC Aamir Farooque was examined at Ex……15, who produced memo of arrest of accused Dilbar Mari, memo of arrest of accused Munawar alias Munni, memo of recovery on pointation of accused Dilbar alias Allah Bachayo and memo of recovery on pointation of accused Shah Nawaz alias Mullah as Ex….15-A to 15-D respectively. PW-11 mashir Ahmed Khan was examined at Ex….. 16, who produced memo of site inspection, memo of securing boxes of looted mobile phones, memo of recovery of motorcycle and memo of recovery on pointation of accused Hyder Lanjo as Ex…..16-A to 16-D respectively. PW-12 mashir PC Allah Bux was examined at Ex…..17, who produced memo of arrest of accused Shah Nawaz alias Mullan as EX…..17-A. PW-13 mashir PC Muhammad Hanif was examined at Ex….18, who produced memo of recovery on pointation of accused Munawar alias Munni as Ex…..18-A. PW-14, I.O. / Inspector Atif Hussain Shah was examined at Ex……19, who produced letter addressed to CPLC, sketch of accused, letter addressed to Excise and Taxation Department, Mirpurkhas, Verification of Motorcycle, Information Note received from SSP Mirpurkhas, permission letter of SSP Umerkot, No Objection Certificate by Judicial Magistrate / Family Judge Mirpurkhas, Interrogation Report, letter of receiving custody of accused Dilbar Mari, Application addressed to Judicial Magistrate-II, Kunri for identification parade, Notice and Order of Judicial Magistrate-II, Kunri, Call Data Record, Criminal Record of accused Dilbar Mari as Ex……..19-A to 19-P and 13 daily diary entries of different dates as Ex……19-Q to 19-DD respectively. PW-15 Mr.Allah Bachayo, the Judicial Magistrate Samaro, was examined at Ex…..20.

7. Learned Public Prosecutor then closed prosecution side through statement at Ex….21.

8. Statements of all accused under Section 342 Cr.P.C. were recorded at Ex…22 to Ex…..25 in which they denied the allegations of prosecution and claimed to be innocent. However, they did not examine themselves on oath, nor opted to lead any evidence in their defence.

9. After formulating the points for determination in the case, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court convicted and sentenced the accused / appellants vide impugned judgments, as stated above. Against said judgment, instant appeals have been preferred by the convicts / appellants.

10. I have heard learned counsel for the appellants, learned counsel for the complainant as well as learned Assistant P.G. appearing for the State and perused the material made available before me on the record with their able assistance.

11. Learned counsel for the appellants submitted that names of the appellants do not transpire in the FIR and though they were subjected to identification Parade, yet no specific role was assigned to them by PW / victim Ghulam Fareed (Page No.89 Ex.9 of paper book). They further submitted that appellant Munawar alias Munni was arrested by the police on 24.12.2020, Hyder was arrested by the police on 26.12.2020, Shahnawaz was arrested on 18.01.2021 whereas the appellant Dilber alias Allah Bachayo was arrested by the police of PS Old Mirpur in connection with Crimes Nos.87, 88 and 90 of 2020; however, he was shown to have been arrested in this case on 21.12.2020. It is their contention that it was the accused Dilber alias Allah Bachayo, who disclosed names of other accused and on his pointation remaining appellants were arrested. They further submitted that despite such fact, the appellants were subjected to Identification Parade on 26.12.2020 i.e. much later after their arrest, hence no sanctity could be attached to the identification Parade, more particularly when PW who allegedly picked up the accused in the Identification Parade had not assigned any specific role to any of the accused in the commission of alleged offence. They further submitted that though some of robbed amount is shown to have been recovered from their possession on 25.12.2020, but that too is delayed by about 04 days of their respective arrest and according to their contention, it was foisted upon them by the police in collusion with the complainant only in order to strengthen the rope of their false case. Learned counsel drew attention of the court towards evidence of PW Ahmed (page No.59 Exh.7 relevant page No.63) where in his cross-examination he had admitted that accused Shahnawaz and Hyder were not present at the time of incident and their names were disclosed to them by the police. As far as alleged motorcycle is concerned, learned counsel while referring to evidence of Inspector / I.O. Atif Hussain (Ex.19 page No.136 at relevant page No.137), submitted that it was recovered on 05.12.2020 from the land of one Yahya Qadiani and said Yahya Qadiani was not examined by the I.O. during investigation. Learned counsel further submitted that since Identification Parade was defective, hence it created doubt to the veracity of prosecution evidence which goes in favour of the appellants. In support of their contentions, they relied upon the case law viz: Sabir Ali alias Fauji v. The State (2011 SCMR 563) [Supreme Court of Pakistan]. They further referred to evidence of PW Ghulanm Fareed (page No.89 Exh.9 at relevant page No.91), whereby he had admitted in his cross-examination that on 21.12.2020 accused Dilber was brought at PS Kunri from Mirpurkhas Jail where the witnesses alongwith complainant and PW Abdul Khalique went to see the accused at PS Kunri before holding of Identification parade. Mr. Mian Taj Muhammad, advocate for appellant Munawar alias Munni, submitted that the said appellant was arrested on 25.12.2020, despite that he was not subjected to Identification Parade and mere recovery of Rs.9,000/ - is no ground to convict him, more particularly when in the FIR nothing had been mentioned as to which of the accused had robbed amount from the victim and even at the time of Identification Parade, it was not pointed out that who allegedly robbed the amount from the victim, hence no specific role was assigned to him as well as to co-accused.

12. Learned counsel, therefore, submitted that in the light of above discrepancies and flaws in the prosecution case, the veracity of the prosecution evidence does not come to the required level in order to maintain the conviction against the appellants, hence they prayed for allowing the appeals and acquittal of the appellants.

13. Learned Assistant P.G. appearing on behalf of the State vehemently opposed grant of appeals on the ground that appellants were rightly picked out by the PWs during Identification Parade, besides robbed amount was also recovered from their possession. He further submitted that no mala fide or enmity has been alleged for their false implication, hence the prosecution evidence could not be discarded merely on the basis of certain discrepancies which are minor in nature. He, therefore, submitted that by dismissing the appeals, impugned judgment may be maintained.

14. Complainant as well as his counsel inspite of notice, have chosen to remain absent; however, Mr. Om Parkash advocate holding brief for Mr. Afzal Karim, advocate for the complainant, opposed the appeals and submitted that prosecution had adduced sufficient material evidence connecting the appellants with the commission of alleged crime, hence appeals merit no consideration, therefore, same may be dismissed.

15. From perusal of the evidence adduced by the prosecution witnesses, it seems that they have made certain glaring and material admissions. Complainant Ahmed Ali in his cross-examination has admitted that though it is mentioned in the FIR that accused had made straight firing but it is not mentioned as to who and how many fires were made. He had further admitted that accused Dilbar was not known to him before registration of the case. He further admitted that though the CCTV cameras were installed at their shop; however, due to power shortage, no video was recorded. He further went on to say that though the place of incident (shop) was surrounded by many houses as well as shops yet none from the surrounding was arrayed as a witness even he did not produce blood stained clothes of the injured. He had also admitted that one accused Soomar Chachar was arrested but later was released by the police being suspicious. PW Niaz Muhammad, who was serving as watchman at the shop of Seth Ghulam Fareed Memon, had deposed in his examination-in-chief that on 03.12.2020 he came to Kunri town for his personal work, meanwhile found three accused in the shop of Seth Ghulam Fareed, who after committing robbery, rushed out. Upon resistance, one of the accused caused fire arm shots on him which inflicted on his chest, after which, he fell down. He further admitted that he was not examined by the police. He; however, had identified the accused Dilbar before the trial Court; however, he could not identify the remaining accused. In his cross, he admitted that before the incident, accused Dilbar was not known to him and his name was disclosed to him by Seth Ghulam Fareed. He also admitted in his cross that he inflicted Lathi blows to accused Dilbar Mari; however, same Lathi was not secured by the police nor he produced as case property, in contravention of his evidence. PW Ghulam Fareed had admitted in his examination-in-chief that as soon as the accused came out, their watchman Niaz Ahmed Gishkori offered resistance wherefrom one of accused caused him fire arm injury. In his cross-examination, PW Ghulam Fareed deposed that names of accused were disclosed to him by the police. He further admitted in his cross that on 16.12.2020 he along with complainant went to District Mirpurkhas and when they reached at PS, accused Dilbar was found in the lock up of PS Mirpurkhas. On 21.12.2020, accused Dilbar Mari was brought to PS Kunri from Mirpurkhas jail, at that time he along with complainant and PW Abdu Khalique went to see accused Dilbar at PS Kunri before conduct of the identification parade.

16. PW Abdul Khalique deposed in his examination-in-chief that as soon as accused came out, their watchman Niaz Ahmed Gishkori offered resistance, whereupon accused caused him fire arm injury. In his cross-examination, he deposed that police did not record his statement under Section 161 Cr.P.C. He further admitted that he is the employee of Seth Ghulam Nabi Memon. After incident 15/20 persons gathered at the spot and name of accused Dilbar was disclosed to him by the police. PW Qazi Muhammad Nooh had deposed in his examination-in-chief almost same facts as are deposed by PWs Seth Ghulam Fareed and Abdul Khalique. He further admitted in his cross-examination that accused Dilbar was not known to him before the incident/FIR; besides, police disclosed name of accused Dilbar. He further admitted that in his cross that shop of the complainant is situated in Main Bazar where so many shops are situated. In the surrounding of shop of the complainant, about hundred persons gathered at the time of incident and he did not go at PS of District Mirpurkhas. PW Umed Ali admitted in his cross-examination that he had not produced entry dated 03.12.2020 through which it could be deduced that he was on duty on particular date at PS Kunri as duty officer even did not know the number of said entry, as mentioned under letter vide Ex.6/A. PW Tufail Ahmed admitted in his cross-examination that he did not produce daily diary entry dated 23.01.2021 nor he verified the ownership of alleged motorcycle from Excise Department even he had not produced such entry showing his departure from PS to Civil Hospital for collecting final medical certificate. PW Aamir Farooque deposed in his examination-in-chief that accused voluntarily produced Rs.3000/- kept in Iron trunk, so also handed over one CD-70 model 2019 of red colour to police. Said motorcycle was recovered on the pointation of accused Shahnawaz and was also made available outside the Court room at the time of evidence. In his cross-examination, he deposed that I.O did not record the statement of WPC Muhammad Ramzan even memo of arrest viz. Ex.15/B did not show any daily diary entry to the effect wherefrom accused was arrested in instant case. At the time of arrest of accused Shahnawaz from village, Inspector Atif Hussain Shah did not call any private person to witness the proceedings. He also did not produce the entry of P.S Kunri which may show that he was at PS Kunri or not. The plastic shopper available before the Court was not in sealed condition. PW/Mashir Ahmed Khan admitted in his cross-examination that he became Mashir of the proceedings at the request of Seth Ghulam Fareed Memon. The complainant asked him to become Mashir of recovery vide Ex.16/C. He also admitted that memo of entries already available vide Ex.12/A but he never went to Kunri Hospital, again admitted that police obtained his signature over the memo of injuries at police station.

17. PW/Inspector/I.O Atif Hussain admitted in his cross-examination that contents of the memo (Ex.18/A) show that the cash amount recovered on the pointation of accused Munawar alias Munni were kept by him in a plastic shopper but the colour of said shopper is not mentioned in the memo and said plastic shopper was not available before the Court. He while referring memo dated 05.12.2020 (Ex.16/C) deposed that motorcycle in question was recovered from the land of one Yahya Qadiyani; however, said Yahya Qadiyani was not made as witness in instant case nor he has been arrayed as an accused in this crime. He further admitted that he had not recorded the statement of owner of the motorcycle. He further admitted that PWs did not disclose name of accused Munawar alias Munni in their statements under Section 161 Cr.P.C; however, at belated stage they were examined under Section 162 Cr.P.C whereby they disclosed name of accused Munawar alias Munni. Accused Munawar alias Munni was not subjected to identification test, though he made entry into Roznamcha/daily diary; however, he did not produce such copy before the Court. He was confronted with memo of arrest of accused Dilbar as Ex.15/A which did not show any entry regarding his arrest from the District Jail Mirpurkhas; however, letter for permission from the concerned Civil Judge was mentioned along with order. He produced accused Dilbar before PS Kunri and said entry was also not produced before the Court.

18. The above-quoted admissions lead to some discrepancies / lacunas in the prosecution case / investigation as well as contradictions in the evidence of prosecution witnesses which may be narrated in the following terms:

19. The identification parade suffers from certain material illegalities and irregularities, inasmuch as; the witnesses who had picked out accused Dilber in the identification parade had already seen him in the police lock-up; no features of the accused was given, as well as no specific role was assigned to each accused in the commission of alleged offence by the witnesses who allegedly picked out the accused in the identification parade, so also there was delay in holding of identification parade. Besides, accused Munwaar alias Munni, although admittedly not being known to the witnesses prior to the incident, was not put to identification test at all. All these lapses put serious dents in the identification parade, thus it cannot be said to have any sanctity in the eye of law.

20. In this connection, reference may be made to a recent judgment pronounced by a Full Bench of Honourable Supreme Court in the case of Mehboob Hassan v. Akhtar Islam and others, reported in 2024 SCMR 757, wherein it was held as under:

"Moreover, in order "to maintain secrecy, it was the responsibility of the concerned police to ensure that the accused should not witness by the witnesses while in police station lock-up or in police custody. The police was required to have taken every precaution to conceal the identity of the detainees before conducting the identification parade. All these precautions should not only be taken, but must have been proved to have been taken. There is nothing on the record to prove that any step was taken by the police in this behalf. Before conducting the identification parade, the respondents had raised an objection before the Magistrate that the witnesses saw them in the lockup and their photographs were published in the newspapers in connection with some other case. The prosecution did not deny the objection. The Magistrate was required to record the objection and to decide its fate, but he ignored the objection and instead, continued to complete the process of identification parade…… the presumption would be that they were picked from amongst the other persons during that identification, because the witnesses had access to the police station and saw the respondents in the police lock-up and might have saw their pictures published in the newspapers before the identification parade. Evidence of such witnesses, identifying the respondents as accused, loses its efficacy."

1. In another case reported as Sabir Ali Alias Fauji v. The State (2011 SCMR 563), while discussing the said point, it was held as under:

"It is settled principle of law that it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses. This aspect of the case was not considered by both the courts below as law laid down by this Court in Munir Ahmed's case (1998 SCMR 752). The aforesaid pieces of evidence clearly envisage that witnesses had opportunity to see the appellant and his co-accused, therefore, identification parade which was held in this case was not in accordance with that rules.

1. In the case of Mehboob Hassan (supra) while dealing with the point that the witnesses, who allegedly picked out the accused in the identification parade, had not given any features of the accused and no specific role was attributed to each of the accused, it was held as under :

"It is noteworthy that the persons who abducted the abductee and those who received the ransom amount were not known to the witnesses prior to the identification parade. It was, therefore, necessary for the witnesses to have had given some features of each of the respondents, with their specific role, during the investigation, before the identification parade, enabling the Magistrate to manage the person of identical features for the purpose of including them in identification parade as dummies. It is an admitted fact that the witnesses did not disclose any such fact in respect of the respondents… The respondents are mainly picked up in the identification parade, and the role attributed to them is not stated by the witnesses, the identification parade in the circumstances was not in line with Article 22 of the Qanun-e-Shahadat Order, 1984, hence, is of no evidentiary value and cannot be relied upon."

24 Likewise, in the case of Sabir Ali alias Fauji (supra) it was held as under:

"It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon. See Ghulam Rasul's case (1988 SCMR 557), Mahmood Ahmed's case (1995 SCMR 127) and Khadim Hussain's case (1985 SCMR 721). As mentioned above the aforesaid witnesses did not mention name and role of the accused in their statements recorded by the Magistrate after identification parade. It is an admitted fact that appellant and his co-accused had taken objection at the time of identification parade that they had already been shown to the witnesses but this objection was not taken into consideration by the courts below. This plea was also taken in reply of question No. 6 by the appellant. In such circumstances identification parade becomes doubtful and cannot be relied upon. See Sohn's case (PLJ 1974 Cr. Cases 208). It is also settled principle of law that when witnesses giving no description of the accused previous to identification, such type of identification cannot be reliable. See Maula Dad's case (AIR 1925 Lah. 426). It is an admitted fact that in terms of contents of witnesses did not know the appellant and his co-accused before the occurrence. Identification parade was not held in accordance with law therefore, identification in court by the witnesses is also of no value in terms of law laid down in Sultan's case (PLD 1976 B.J. 10). It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of FIR, the benefit of doubt be given to the accused persons coupled with the face that according to the prosecution witnesses they had opportunity to see them on the day of incident in moonlight. Identification parade was held after about six months from the date of occurrence and also conducted after a delay of 9 days after the arrest of the accused. This delay per se in both counts create lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused."

In the same case it was also held as under:

"It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created and in the case in hand identification parade of all the three accused was held jointly. This aspect of the case was, not considered by both the courts below in terms of law laid down by this Court in Pasand's case (PLD 1981 SC 142) wherein the conviction was set aside on this ground alone. It is also settled principle of law that picking out of accused in identification parade is not a substantive piece of evidence. Such evidence is merely corroborative piece of evidence. It is pertinent to mention here that contents of the FIR reveal that witnesses would be able to identify the accused after seeing them. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements keeping in view the principles laid down by this Court in various pronouncements. See Farman Hussain's case (PLD 1995 SC 1), Ismail's case (1974 SCMR 175). It is also settled principle of law that if accused were not named in the FIR identification parade becomes necessary. See Farman Ali's case (1997 SCMR 971).

1. It is also an admitted position that no identification parade was held in respect of accused Munwar alias Munni although admittedly he was also not previously known to the complainant and other alleged eye-witnesses of the incident. It is now well settled that in case it is disclosed in the FIR that the accused were not known to the alleged eye-witnesses, then it is incumbent upon the I.O. to get the arrested accused identified through said eye-witnesses in a proper identification parade. In the case of Sabir (supra) it was held, "It is pertinent to mention here that contents of the FIR reveal that witnesses would be able to identify the accused after seeing them. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements keeping in view the principles laid down by this Court in various pronouncements. See Farman Hussain's case (PLD 1995 SC 1), Ismail's case (1974 SCMR 175). It is also settled principle of law that if accused were not named in the FIR identification parade becomes necessary. See Farman Ali's case (1997 SCMR 971)."

In the said case it was also held as under:

"It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created and in the case in hand identification parade of all the three accused was held jointly. This aspect of the case was, not considered by both the courts below in terms of law laid down by this Court in Pasand's case (PLD 1981 SC 142) wherein the conviction was set aside on this ground alone. It is also settled principle of law that picking out of accused in identification parade is not a substantive piece of evidence. Such evidence is merely corroborative piece of evidence."

1. Investigating Officer P.W. Atif as well as other police officials in their respective evidence have admitted that relevant roznamcha entries / daily diaries were not produced before the trial Court during course of evidence. It is a settled principle of law that the Superior Courts have not appreciated such conduct on the part of the police/prosecution for non-production of roznamcha entry and have held that such lapse also puts dent in the prosecution case. In the case of Muhammad Akram v. State reported in 2020 YLR Note 94 (Sindh High Court) Investigating Officer admitted in his cross-examination that he had not produced roznamcha entry before the court, likewise, witness who registered the FIR also admitted in his evidence that he had not produced roznamcha entry in the court, therefore, it was held that in absence of any roznamcha entry, it becomes suspicious as to whether, Investigating Officer or police party, as the case may be, had in fact left the police station to the place of arrest, incident and/or recovery or not. Such facts were fatal to the prosecution case.

2. In the FIR as well as in his evidence the complainant, so also three alleged eye-witnesses in their respective evidence have categorically stated that in all three accused had committed the alleged offence; however, in their supplementary statements recorded subsequently under section 162 Cr. P.C. they have also involved accused Munwar and others. The Investigating Officer namely, P.W. Atif in his cross-examination categorically admitted, "It is fact during course of investigation the PWs did not disclose the name of accused Munawar alias Munni in their statement under section 161 Cr.P.C, however, at later stage, their statements were recorded under section 162 Cr.P.C. in which they disclosed the name of accused Munawar alias Munni. It is fact I have not produced statements under section 162 Cr.P.C. before the court."

3. As admitted by the I.O., the supplementary statements were not produced by him before the trial Court, nor has he deposed as to on what date such statements were recorded, thus no legal sanctity could be attached to such supplementary statements.

4. In this connection, reference may be made to the case of Faisal Ahmad v. The State, reported in 2018 YLR 1269 [Lahore], where it was held as under:

"It is noticed that the petitioner is not named in FIR. He has been involved in this case through supplementary statement dated 30.11.2016 after about four days of the occurrence wherein no source of his information has been mentioned as to how he came to know about the involvement of the petitioner. Such supplementary statement has got no value in the eyes of law. Reliance is placed on case law titled as "Falak Sher alias Sheru v. The State" 1995 SCMR 1350 and "Abid Ali alias Ali v. The State" 2011 SCMR 161."

1. There also appears violation of the provisions of Section 103 Cr.P.C. Complainant in his cross-examination had admitted, "It is fact houses and shops are situated in surrounding of place of incident."

2. P.W. Aamir Farooqui, mashir, admitted "I cannot estimate the total number of houses in village of accused Shah Nawaz Lanjo where memo Ex. 15-D was prepared.…It is fact when we left P.S. Kunri along with accused Shah Nawaz, the Inspector Atif Hussain Shah did not call any private person to act as mashir."

3. Needless to emphasize that in view of provisions of Section 103 Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. Only cursory efforts are not enough merely in order to fulfill casual formality, rather serious and genuine attempts should be made to associate private mashirs of the locality. In this connection, reference may be made to cases reported as State v. Bashir and others (PLD 1997 SC 408), Sarmad Ali v. The State (2019 MLD 670) and Yameen Kumhar v. The State (PLD 1990 Karachi 275).

4. As admitted by the I.O, PWs Abdul Khalique, Qazi Muhammad Nooh and Niaz that blood stained clothes of the injured were not secured nor were produced by the I.O before the trial Court. Injured PW Niaz had also admitted in his examination-in-chief that police did not record his statement. It is settled law that non-recording of statement of the witness particularly who is injured one/victim and is a star witness of the prosecution for a considerable time, shatters the entire prosecution version.

5. Such lapse on the part of Investigating Officer also puts dent in the prosecution case. In the case of Mst. Mir Zalai v. Ghazi Khan and others, reported in 2020 SCMR 319, Honourable Supreme Court held as under:

"Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan 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. In these circumstances the High Court had concluded that the eye-witnesses produced by the prosecution were not reliable and in all likelihood they had not witnessed the murder in issue. In the above mentioned peculiar circumstances of this case we have not been able to take any legitimate exception to the said conclusion reached by the High Court."

1. In this connection, reference may be made to the case of YASIR PARVEZ and others v. The State and others, reported in 2023 YLR 2164 [Lahore], wherein a Division Bench of Lahore High Court held as under:

"Non-recording of statement of injured for about ten long days simply shattered the whole prosecution story given in Ex.PU particularly where it has not been plausibly explained at trial that what refrained the Investigator from recording statement of injured. All these facts clearly suggest that FIR in the instant case was lodged after due deliberation and consultation between complainant and police without recording statement of injured who received fire shot on his abdomen and he was in his senses when he was firstly medically examined at THQ Hospital, Bhalwal. Legitimate and irresistible conclusion that may conveniently be drawn from the above discussed facts is that the occurrence in consequence of which Hashmat Ali received fire shot injury and then lost his life, did not take place in the mode and manner as stated by the witnesses of ocular account who even otherwise are not only chance witnesses but also interested witnesses. It is established principle of criminal jurisprudence that conviction can only be based on evidence of unimpeachable character leading to certainty of the guilt of the accused and even a single doubt arising in the prosecution case must be resolved in favour of the accused whereas instant case from its inception to end remained replete with doubts."

1. It is also significant to point out that no proper investigation was conducted by the I.O. in respect of the motorcycle which was allegedly used by the accused in the commission of alleged offence.

2. Inspector / I.O. Atif Hussain deposed that the said motorcycle was recovered on 05.12.2020 from the land of one Yahya Qadiani; however, said Yahya Qadiani was not examined by him during investigation. He further admitted, "It is fact I also did not record statement of owner of said motorcycle." It is evident that the said motorcycle was allegedly used in the commission of the alleged offence and the accused also fled away on the same motorcycle after committing the offence. In such circumstances, it was obligatory for the I.O. to have recorded the statement of the owner of said motorcycle but the owner has neither been arrayed as an accused, nor has been cited as a witness in the case. Not only this, even the above said Yaya Qadiani from whose land said motorcycle was secured by the police, was not examined by the I.O. Furthermore, it is pertinent to mention that per prosecution case and as per FIR, culprits were on one 125 motorcycle. Moreover, per memo of recovery, one CD-70 has been recovered, which shows mala fide on the part of police. This is also injurious to the prosecution case.

3. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. 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. In instant case prosecution does not seem to have proved the allegations against the accused/appellants by producing unimpeachable evidence, thus doubts have been created in the prosecution version. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:

"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

1. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:

"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal."

2025 P Cr. L J 1115

[Sindh]

Before Adnan Iqbal Chaudhry, J

NOor Agha---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 2690 of 2024, decided on 16th January, 2025.

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

----S. 497(1), third and fourth provisos---Penal Code (XLV of 1860), Ss. 302(b), 364, 109 & 34---Qatl-i-amd, abduction, abetment, common intention---Bail, dismissal of---Hardened, desperate or dangerous criminal---Allegations against the petitioner-accused was that he committed murder of the brother of complainant after abducting him---As per record, from the date of his arrest on 10.10.2022, the applicant had been in continuous detention for a period exceeding two years, and so far only 6 prosecution witnesses out of a list of 20 had been examined by the Trial Court---There were two exceptions to the grant of bail on the statutory ground of delay---First was in the third-proviso itself of S.497(1), Cr.P.C where delay in the trial had been occasioned by an act or omission of the accused or any other person acting on his behalf---Second exception was in the fourth-proviso where the accused was a previously convicted offender for an offence punishable with death or imprisonment for life, or a hardened, desperate or dangerous criminal, or was accused of an act of terrorism punishable with death or imprisonment for life---Prosecution did not urge the first exception to the statutory ground of delay viz. that the delay had been occasioned by or on behalf of the applicant/accused---As regard the second exception, the criminal record of the applicant did not reveal any prior conviction, nor he was accused of any act of terrorism---However, it was contended by the prosecution that the applicant was nonetheless 'a hardened, desperate or dangerous criminal' within the meaning of the fourth-proviso to S.497(1), Cr.P.C.---Charge of abetting, abduction and murder was indeed a charge for a grave offence---Applicant was the brother of the principal accused, and it was the information divulged by the applicant during interrogation that unraveled the crime---It was alleged by the prosecution that the applicant confessed during interrogation that he was part of the plan to commit the offence and that he was also riding in another car that accompanied the vehicle in which the victim was abducted---Extra-judicial confession of the applicant by itself was of no evidentiary value, but then he led the police to the spot where the victim was shot, from where two empties of 9mm firearm were recovered---As per the Forensic Science Laboratory Report, those empties matched the pistol recovered from the principal accused---In such circumstances, the applicant fell within the bracket of 'a hardened, desperate or dangerous criminal' within the meaning of the fourth-proviso to S.497(1), Cr.P.C. which was an exception to the right of bail on the statutory ground of delay under the third-proviso---Therefore, the bail application was dismissed, in circumstances.

Shakeel Shah v. The State 2022 SCMR 1; Nadeem Samson v. The State PLD 2022 SC 112 and Allah Wasaya v. The State PLD 2022 SC 541 rel.

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

----S. 497---Bail order---Observations of Court---Scope---Observations made in a bail order are tentative and should not be construed to prejudice the case of either side at trial.

Raj Ali Wahid Kunwar for Applicant.

Salah-ud-Din Khan Gandapur along with Ms. Sana Kheshgi for the Complainant.

Ms. Aisha Saeed, ADPP for the State.

Date of hearing: 16th January, 2025.

Order

Adnan Iqbal Chaudhry, J.---On the merits of the case, post arrest bail was denied to the Applicant, Noor Agha, by the trial court and then by this Court by order dated 11.09.2024 passed on Cr. Bail Application No. 1645/2024. Thereafter, he moved a fresh application for bail to the trial Court on the statutory ground of delay which has been denied by order dated 07.11.2024, hence this bail application.

1. The FIR was for the abduction and murder of Hameedullah, the Complainant‟s brother, which took place on 18.08.2022. It was reported that the victim was abducted from Machar Colony around 00:15 hours by 4/5 unknown persons who took him away in a Toyota Vigo, which incident was witnessed by residents of the vicinity; that around 15:00 hours on the same day, the dead body of the victim was found at the Northern Bypass with a shot to the head.

2. Investigation led to the Applicant and one Muhammad Naseem, who were arrested from Machar Colony on 10.10.2022. On interrogation they disclosed that the plan to abduct and murder the victim was made by Wali Muhammad, who was the brother-in-law of the victim, and who had hired Dawood and his men from Quetta to take revenge upon the victim for molesting Wali Muhammad's younger sister; that after abducting the victim in a Toyota Vigo, Dawood and his men took him near the link road to the Northern Bypass, shot him in the head and dumped his body further ahead. Muhammad Naseem is Dawood's brother, whereas the Applicant Noor Agha is Wali Muhammad's brother. Per the prosecution, both of them confessed during interrogation that they were complicit in the offence; that they had accompanied Dawood and his men in another car to the place where the victim was shot, and they led the police to such spot from where two empties from a 9mm firearm were recovered.

3. Heard learned counsel, the ADPP Sindh, and perused the record.

4. This bail application is confined to the statutory ground of delay available under the third-proviso to section 497(1) Cr.P.C. for an offence punishable with death if the accused person has been detained for a continuous period exceeding two years and his trial has not concluded. It has been held by the Supreme Court that the statutory ground of delay is to be considered from the date of arrest/detention of the accused and not from the date charge was framed.

5. It is a fact that from the date of his arrest on 10.10.2022, the Applicant has been in continuous detention for a period exceeding two years, and thus far only 6 prosecution witnesses out of a list of 20 have been examined by the trial Court. However, there are two exceptions to the grant of bail on the statutory ground of delay. The first is in the third-proviso itself viz. where delay in the trial has been occasioned by an act or omission of the accused or any other person acting on his behalf. The second exception is in the fourth-proviso viz. where the accused is a previously convicted offender for an offence punishable with death or imprisonment for life, or a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life. These exceptions have been discussed in the case of Shakeel Shah v. The State (2022 SCMR 1). As regards the first exception, it was held that the act or omission by the accused to delay the trial must be a visible concerted effort orchestrated by the accused. As regards the second exception, it was held that the words "hardened, desperate or dangerous" "paint a picture of a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act."

6. The prosecution does not urge the first exception to the statutory ground of delay viz. that the delay has been occasioned by or on behalf of the Applicant/accused. As regards the second exception, the CRO of the Applicant does not reveal any prior conviction, nor is he accused of any act of terrorism. However, it is contended by the prosecution that the Applicant is nonetheless "a hardened, desperate or dangerous criminal" within the meaning of the fourth-proviso to section 497(1) Cr.P.C. On the other hand, it is submitted by learned counsel for the Applicant that he is being detained solely on an extra-judicial confession; and that, in the absence of a prior criminal record, the role assigned to the Applicant for abetting the murder does not make him a hardened, desperate or dangerous criminal.

7. The view expressed in Shakeel Shah on the meaning of the words 'hardened, desperate or dangerous criminal', was expounded by the Supreme Court in Allah Wasaya v. The State (PLD 2022 SC 541) while discussing the aspects a Court may consider to tentatively assess whether the accused seeking bail is such a criminal. Most importantly, it was held that since prior conviction of the accused person was a separate test under the fourth-proviso to section 497(1), Cr.P.C., the words "ardened, desperate or dangerous criminal" can include a first offender if the gravity and severity of the act alleged is such. It was held:

"6. The word "criminal" in the phrase "hardened, desperate or dangerous criminal" of the fourth proviso to Section 497(1), Cr.P.C., as held by a five member bench of this Court in Moundar v. State, is not to be construed in the technical sense for a person who has been adjudged guilty of a charge in a Court of law, i.e., a convicted person; it has rather been used in its ordinary sense for a person who violates the law of the land and is accused of committing a crime. Further, the fourth proviso to section 497(1), Cr.P.C. deals with the previously convicted offenders separately. Therefore, in order to bring an accused within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he has a previous criminal record of conviction. It is thus obvious that the previous criminal record of convictions or of pendency of other criminal cases, though may be taken into consideration as a supporting material, is not an exclusive deciding factor to form an opinion as to whether the accused is a hardened, desperate or dangerous criminal. Such an opinion is to be formed by the court mainly on basis of the facts and circumstances of the case, borne out from the material available on record, wherein the bail is applied on the ground of delay in conclusion of the trial, by considering inter alia, the nature of the offence involved, its effects on the victims or the society at large, the role attributed to the accused, the manner in which the offence was committed and the conduct of the accused. Needless to mention that the formation and recording of such opinion as to the character of the accused, like the opinion as to reasonable grounds for believing his involvement in the commission of the offence, is of tentative nature, and is thus open to re-examination and final determination on conclusion of the trial.

1. The meaning and scope of the phrase "hardened, desperate or dangerous criminal" have also been explained in Shakeel Shah, wherein this Court held that the words "hardened, desperate or dangerous" point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. We are of the considered view that the court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1) Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form opinion that the accused is a hardened, desperate or a dangerous criminal."

2025 P Cr. L J 1140

[Sindh]

Before Adnan-ul-Karim Memon, J

Fahad Ahmed Gulzar and another---Applicants

Versus

ASI/IO Saeed Mahroof and 2 others ---Respondents

Criminal Miscellaneous s No. 697 of 2024, decided on 15th July, 2024.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 353, 186, 269, 270 & 34---Inherent power of High Court---Scope---Judicial Magistrate on final report submit by the Investigating Officer in a case registered under Ss.353, 186, 269, 270 & 34, P.P.C, directed that the report under S.173 Cr.P.C be returned to the Investigating Officer for presentation before the Intellectual Property Tribunal---Validity---Under the law, the Magistrate cannot ask the SHO/Investigation Officer to submit the report under S.173, Cr.P.C. in a particular manner, i.e. against the persons he desired or in respect of such offenses that he wishes---However, if Magistrate finds that the Investigating Officer has not investigated the case on the subject point involved in the matter, he may direct the Investigating Officer to conduct further investigation and submit a report after its conclusion---Directly saying that the matter pertained to particular jurisdiction without taking cognizance and framing the point of determination, did not align with Ss.173 and 190, Cr.P.C., therefore, the impugned order dated 26.06.2024 to the extent of returning the report under S.173, Cr.P.C. to Investigating Officer for presentation before the concerned forum/Court was set at naught---Criminal Miscellaneous Application stood disposed of with directions to the Trial Court having jurisdiction to proceed with the case and decide the fate of the case in accordance with law.

Ch. Muhammad Anwar Samma and others v. The State 1976 SCMR 168 and Shahzeb and others v. The State 2016 SCMR 1740 rel.

Waqar Alam Abbasi for Applicant.

Shoaib Safdar, Assistant P.G.

Muhammad Hisham Mehar A.A.G. along with ASI Saeed Mehboob, of PS PIB Colony and DSP Abdul Ghaffar Shah, Gulshan-e-Iqbal East.

Date of hearing: 15th July, 2024.

Order

Adnan-ul-Karim Memon, J.---The applicants Fahad Ahmed Gulzar and Gulzar Ahmed have filed this Cr. Misc. Application under Section 561-A Cr.P.C against the order dated 26.06 2024 passed by the learned XXI Judicial Magistrate Karachi East on final report submitted by the Investigating Officer in Crime No. 151 of 2024 registered for offense under Sections 353, 186, 269, 270/34 P.P.C. of PS PIB Colony Karachi, whereby the report under Section 173 Cr.P.C was returned to the Investigating Officer for presentation before the Intellectual Property Tribunal Forum/Court. It is inter alia contended that the trial Court failed to appreciate the documentary evidence and erroneously returned the report to the Investigating Officer for presentation before the Intellectual Property Tribunal. Learned counsel further submitted that the learned trial Court wrongly invoked Section 66-A of the Copyright Ordinance, 1962 and referred the matter to the Intellectual Property Tribunal and added the sections of Copyright which are not attracted in the facts and circumstances of the case. Per learned counsel, the applicant obtained post-arrest bail in the subject crime, which was canceled without hearing the applicant. Learned counsel prayed for setting aside the order dated 26.06.2024 passed by the learned Judicial Magistrate Karachi East, which needs to be set at naught.

1. Learned Additional Prosecutor has narrated the story and submitted that on 08-04-2024 police during patrolling received spy information that in Mecasa Apartment, Block 12 Gulshan-e-Iqbal, Karachi, two persons had stocked different brands of Cigarette, injurious to health, on such information police reached the spot where they were deterred from performing their duties, however, they succeeded to arrest applicant Fahad, while other accused managed to escape. The case property was seized on the spot and the accused was produced before the Court of Area Magistrate, where they were released on surety of PR Bond of 10 Thousand each. After completion of the investigation, the investigating officer submitted a charge sheet to the trial Court, meanwhile, the trial court returned the chargesheet to the investigating officer for presentation before the Intellectual Property Tribunal vide impugned order and recalled the bail granting order for want of jurisdiction.

2. I have heard the learned counsel for the parties and perused the record with their assistance.

3. This Court vide order dated 4.7.2024 while issuing notice to the respondents, framed the following questions:-

"To appreciate whether the trial Court can add and delete the Section of law in the final report not attracted in the present case, whether the report submitted by the Investigation Officer under Section 173 Cr. P.C. can be modified and subsequently returned to the Investigating Officer for presentation before the Intellectual Property Tribunal having jurisdiction in the matter and whether the bail already granted to the applicant in the subject crime can be canceled without resorting the grounds mentioned and Section 497 (5) Cr. P.C

1. On the aforesaid proposition, the learned counsel for the applicants contended that the Judicial Magistrate had no authority to interfere in the investigation and exceeded his jurisdiction while directing the Investigating Officer to present the chargesheet before the Intellectual Property Tribunal in Section 66-A of the Copyright Ordinance, 1962. On facts, he contended that Sub-Inspector PS PIB colony had lodged a false case against the applicants, as the alleged occurrence did not take place. The prosecution specifically alleged that the applicants had stocked different brands of Cigarettes, injurious to health but the same was never referred to the chemical examiner for verification. He maintained that in the peculiar circumstances of the case chemical examination of the purported case property was essential to corroborate the ocular account. The learned counsel further submitted that even if the prosecution version was assumed to be correct, Section 66-A of the Copyright Ordinance 1962 could not be invoked against them. The impugned order had thus seriously prejudiced the applicants.

2. The learned Additional Prosecutor General vehemently opposed this Criminal Miscellaneous Application and supported the impugned order. He contended that the Investigating Officer was obligated to place all the relevant papers before the Magistrate while seeking acceptance of the chargesheet against the accused. In turn, the Magistrate was required to act judicially while considering that request and in doing so if he found that a particular offence was made out he was competent to direct the Investigating Officer to add the relevant section in the FIR. On facts, he submitted that section 66-A of the Copyright Ordinance, 1962 was very much attracted and no exception could be taken to the Judicial Magistrate's direction in this regard. He contended that the Magistrate was the overall in charge of the criminal case. Hence, if circumstances required he could direct the Investigating Officer to add or omit a particular section thus the impugned order was valid and justified. I am not in agreement with the proposition so put forward by the learned Additional Prosecutor General that Section 66-A of Copyright Ordinance, 1962, my tentative view is that Section 66-A provides a penalty for publishing collections or compendiums of work which have been adapted, translated, or modified in any manner without the authority of the owner of the copyright, whereas in the present case nobody has come forward to claim copyright and the offense if any committed could be tried by Court within local limits of whose jurisdiction it was committed in terms of Section 177, Cr.P C and if during the framing of the charge the trial Court finds the offense to be tried by another Court of law then he has to apply its mind whether, from the ingredients of the FIR and charge sheet, the said offense is applicable or otherwise, however in the present case the learned trial Court has invoked the provision of Intellectual Property Organization of Pakistan Act, 2012 and referred the matter to the Tribunal for trial of the subject offense, prima facie the approach of the trial Court does not align with law laid down by the Superior Court on the subject issue, for the reason that there is no complainant on behalf of the certain companies to come forward to claim copyright to attract the jurisdiction of tribunal in terms of Section s15 and 18 of the Intellectual Property Organization of Pakistan Act, 2012.

3. It is by now well settled that it is the duty of the police to investigate the FIR and collect evidence. The courts have no authority to interfere in their proceedings unless they are mala fide or without jurisdiction. Even the High Court cannot invoke section 561-A, Cr.P.C. to issue directions to the investigators for the reason that the 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 offense 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 inquiry. 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. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its function, always, of course, subject to the right of the Court to intervene in an appropriate case like habeas corpus. However, if an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding under the law.

4. Further the only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigations and further ordains that on conclusion of every investigation, the concerned SHO shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the SHO either not to submit the said report or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only to such offenses as the Court wishes.

5. Primarily, 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. First Information Report sets the law in motion. The police investigate the allegations of the complainant party, collect evidence, identify the offenses 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 Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2010 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.

6. The term "scrutinize" has a wide connotation and includes the power to add or delete a section. However, 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 judicial mind, and frame a charge against him for all those offenses 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.

7. In a nub, during investigation the prosecution agency and after cognizance is taken it is the court that decides how the accused is to be charged. Nonetheless, after the registration of FIR and before the commencement of trial there may be various stages when the matter may be brought to the court. Quite often a controversy arises as to whether during such proceedings the court is competent to direct the Investigating Officer to add or omit a particular section in the FIR. The Supreme Court in the case of Ch. Muhammad Anwar Samma and others v. The State (1976 SCMR 168) held as under:-

2025 P Cr. L J 1165

[Sindh]

Before Amjad Ali Bohio, J

Messrs Sui Southern Gas Company ltd. through Law Officer---Appellant

Versus

Tahir Ali and another---Respondents

Criminal Acquittal Appeal No. 461 of 2022, decided on 9th May, 2023.

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

----Ss. 15, 17 & 24---Criminal Procedure Code (V of 1898), S. 417---Theft of gas---Appreciation of evidence---Appeal against acquittal--- Implication on basis of hearsay evidence---Accused was found involved in gas theft---Record showed that the complainant implicated the accused/respondent based on statements from individuals present at the scene, who claimed that accused was the owner of the business or factory where the illegal gas connection was allegedly being used---However, the Investigating Officer did not gather any evidence regarding the ownership of the property in question---Furthermore, during the trial, the Investigating Officer admitted that he was unaware of the ownership details of the premises---Similarly, the complainant also failed to provide the names of the witnesses who informed him about accused's ownership of the factory---As a result, the very foundation of the allegations against the accused, upon which he was implicated, was not proved---Prosecution had failed to prove the ownership or connection of the accused with the premises where the alleged gas theft took place---Failure to produce such a crucial piece of evidence undermined the entire case---It is the prosecution's liability to establish the guilt of accused beyond a reasonable doubt---Evidently, accused-respondent had been implicated based on hearsay evidence and no direct or independent evidence had been presented to establish his connection with the commission of offence---Appeal against acquittal was dismissed, in limine.

Waseemullah v. The State 2016 SCMR 1282 rel.

Malik Sadaqat Khan for Appellant.

Date of hearing: 9th May, 2023.

Order

Amjad Ali bOhio, J.---In the present Criminal Appeal filed under section 417 Cr.P.C, the appellant, M/S Sui Southern Gas Company Ltd., has challenged the validity of the judgment dated 03.06.2022 rendered by the learned Sessions Judge, Karachi Central (Gas Utility Court). The judgment pertains to Sessions case No. 1208/2017, which arises from FIR No. 60/2017 lodged on 27.09.2017 at Police Station SSGC Karachi. The case involves allegations of offences under sections 15, 17, and 24 of the Gas (Theft Control and Recovery) Act, 2016. The impugned judgment resulted in the acquittal of the respondent, Tahir Ali.

1. According to the FIR, the case involves Complainant Ramesh Kumar, Deputy Manager of Sui Southern Gas Company (SSGC), who, accompanied by his team and a police party from the SSGC Police Station, discovered an illegal Sui Gas connection at Plot No. 2347/3, KESC Block-Q, Umer Farooq Colony, North Nazimabad, Karachi. This illegal connection was being utilized for commercial purposes in the production of "Til Kay Ladoo." Promptly taking action, the complainant's team, with the assistance of a technical team, disconnected the illegal connection and confiscated several items, including a 2.5 KVA Generator, one stove equipped with 24 nozzles, two burners with six stars each, and an eight-foot-long rubber pipe. During the course of the inquiry, the complainant discovered that the owner of the aforementioned factory was Tahir Ali, son of Qurban Ali. Subsequently, an FIR was lodged, leading to the investigation of the case and the subsequent trial against the accused named above.

2. After the submission of police papers and documents, the charge was framed, to which, the accused pleaded not guilty, opting for a trial. Subsequently, the prosecution presented its evidence by examining complainant Ramesh Kumar (PW-1), Muhammad Majid (PW-2), Muhammad Arif (PW-3), and Sub-Inspector Abid Shah (PW-4) during the course of the trial. Following the conclusion of the prosecution's evidence, the statement of the accused under Section 342 of the Code of Criminal Procedure (Cr.P.C) was recorded. In this statement, the accused denied the allegations made against him in relation to the aforementioned offence.

3. After considering the arguments presented by both parties, the trial court acquitted the respondent. The grounds for acquittal were that the prosecution was unable to establish the respondent's ownership or any connection with the business, whether as an owner or as a tenant. Consequently, the prosecution failed to prove the charge against the respondent. Dissatisfied with this judgment, the appellant has filed the present appeal against the acquittal.

4. During the initial stage of the appeal hearing, the counsel for the appellant has argued that the prosecution presented the complainant as a witness who confirmed the details mentioned in the FIR. The complainant stated that an illegal gas connection was discovered at Plot No.2347/3, KESC Block-Q, Umer Farooq Colony, North Nazimabad, Karachi, which was being used for commercial purposes. The complainant specifically identified the respondent, Tahir Ali, as the owner of the said commercial business. The raiding party also seized various items, including a 2.5 KVA Generator and other materials. However, the trial court failed to properly consider the prosecution's evidence and consequently rendered the impugned judgment. The counsel argues that this judgment is not sustainable and should be set aside.

5. After considering the arguments presented by the appellant's counsel, I have carefully reviewed the evidence provided by the prosecution. It is evident that the complainant implicated the respondent based on statements from individuals present at the scene, who claimed that Tahir Ali was the owner of the business or factory where the illegal gas connection was allegedly being used. However, it is important to note that the investigating officer (I.O) did not gather any evidence regarding the ownership of the property in question. Furthermore, during the trial, the I.O admitted that he was unaware of the ownership details of the premises. Similarly, the complainant also failed to provide the names of the witnesses who informed him about Tahir Ali's ownership of the factory. As a result, the very foundation of the allegations against the accused, upon which he was implicated, was not proved. In a similar case, Waseemullah v. The State (2016 SCMR 1282), the issue of lack of evidence regarding ownership arose, and the Honorable Supreme Court observed that "a specific question has been asked by us to learned DAG and Investigating Officer (present in court), who have stated that no evidence has so far been collected in connection with the premises from where alleged extraction of the gas was being carried."

2025 P Cr. L J 1172

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Mst. Azra and others---Appellants

Versus

The State---Respondent

Criminal Appeal No. 768 of 2024, decided on 18th January, 2025

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

----Ss. 336-B & 34---Itlaf-e-salahiat udw, common intention---Appreciation of evidence---Accused were charged that they threw acid on daughter-in-law of the complainant as a result of which she got multiple burn injuries---Perusal of evidence of all the witnesses showed that prosecution had succeeded in discharging burden of proving the charge against the appellants---Victim had unequivocally revealed that all the appellants, who were already known to her, being neighbors, had thrown acid on her---Victim's evidence was consistent with the revelations made by Woman Medico-Legal Officer, who had opined that there were burnt marks on various parts of her body including neck, arm, legs and trunk---Defence alleged that no specific role had been assigned to any of the appellants---In cases of acid throwing, it was not necessary to specifically name the accused out of multiple accused when all had been specifically stated to have acted conjointly in conjunction with each other in throwing acid on the victim---In this case, the victim was available in the house, when all three appellants came at the door of her house together and when she after hearing commotion between appellants and her family members, came out of the house, they threw acid on her---Act of appellants i.e. coming at the house of victim together showed meeting of their minds, besides the fact that they were acting conjointly in furtherance of their common intention---Victim sustaining multiple injuries from the acid was not only established from the medical opinion of Woman Medico-Legal Officer but also by the police letter, different memos prepared by the police during investigation and evidence of the victim herself---Appellants had taken a specific plea of being arrayed in the case due to property dispute but had failed to bring on record any material remotely suggesting that parties were loggerhead on account of any dispute over property---Nothing was available on record to show that the appellants had been falsely implicated in the case out of any motive or enmity between the parties---In the lengthy cross examination, to which the complainant and victim had been subjected, no material contradiction had come on record suggesting false implication of the appellants in the case---Woman Medico-Legal Officer had not only produced initial notes prepared by her at the time of examination of the victim but the supplementary medical report on the basis of opinion of surgery department confirmed that victim had sustained permanent disfigurement as a result of burnt injuries---Appeal against conviction was dismissed, in circumstances.

2022 YLR 999; 2020 PCr.LJ 1419; PLD 2021 SC 600; 2018 SCMR 772; PLD 2007 SC 637 and 1997 SCMR 866 ref.

(b) Criminal trial---

----Specific plea of accused---Burden of proof---Scope---When specific plea is taken by the accused in defence, burden is upon him to establish the same.

Liaqat Ali Khaskheli for Appellants.

Faheem Hussain Panhwar, DPG for the State.

Date of hearing: 15th January, 2025.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellants were charged for throwing acid on daughter in law of complainant namely Chanda on 13.08.2019 at the door of her house as a result of some dispute between the parties causing her multiple injuries and tried in S.C. No.2241/2019. They have been returned guilty verdict by way of impugned judgment dated 30.10.2024 rendered by Additional Sessions Judge-II, Karachi West, in the terms to suffer SI for 14 years for committing offences under section 336-B, 34 P.P.C.. In addition, they have been burdened to pay fine of Rs.One Million, and in case of failure, to undergo extra sentence of six months with benefit of section 382-B Cr.P.C duly extended to them.

1. As per brief facts of the case revealed in FIR, on 11.08.2019 complainant was busy in draining out rainy water accumulated in the street, when he found electricity wire belonging to the appellants running through the water, hence he sent a boy to the appellants to make a request to remove the wire so that nobody could get electricity shock but appellants misbehaved with him and went away without removing electricity wire. On 13.08.2019 the appellants came at the house of complainant, they knocked the door, when wife of his son Zeeshan namely Chanda came out of the house, the appellants threw acid on her and escaped from the scene. She as a result got multiple burnt injuries and rushed to the police station for a letter after which she was taken to Abbasi Shaheed Hospital for treatment. Next day complainant came and registered the FIR as above.

2. During investigation, appellants Jibran and Farhan were arrested on 14.08.2019 whereas appellant No.1 Mst. Azra got bail. After usual investigation the Challan was submitted and the trial was commenced after the appellants pled not guilty to a formal charge. In order to prove the case, prosecution has examined 05 witnesses. Complainant Shamshad Masih as P.W.1, victim Chanda as P.W.2, SI Muhammad Ismail, I.O. of the case as P.W.3, Women Medico Legal Officer Dr. Samya Sahar as P.W.4 and ASI Muhammad Arshad as P.W.5. After prosecution evidence, statements of appellants were recorded under section 342 Cr.P.C in which they have denied the allegations and have submitted that due to property dispute, they have been implicated in this case. The learned trial court, however, has convicted and sentenced the appellants in the terms as above through impugned judgment, hence this appeal.

3. Learned counsel for appellants has argued that appellants are innocent and have been falsely implicated in this case; there is no recovery of acid from the place of incident; nor the pot etc. in which allegedly the acid was brought by the appellants was procured during investigation. The letter dated 13.08.2019 whereby victim Chanda was referred to Medico Legal Officer shows that she burnt herself by throwing acid; there is inconsistency in medical report, chemical report is not available; the incident took place on 13.08.2019, whereas she went to hospital next day on 14.08.2019 which is sufficient to cause a dent in the prosecution case; no specific role has been assigned to any of the appellants, in absence of which each appellant is entitled to a benefit of doubt. He has relied upon 2022 YLR 999, 2020 PCr.LJ 1419, PLD 2021 SC 600, 2018 SCMR 772, PLD 2007 SC 637 and 1997 SCMR 866 to support his arguments.

4. On the other hand, learned DPG has supported the impugned judgment and stated that prosecution has succeeded in proving the case against the appellants.

5. I have considered submissions of the parties and perused material available on record. Prosecution in all has examined five witnesses. P.W.1 is complainant, he has narrated entire story as revealed by him in FIR and has stated that after his daughter in law was injured at the hands of appellants, he took her to P.S., got a letter for treatment and then proceeded to Abbasi Shaheed Hospital, where she was given medical treatment. Next day he lodged the FIR, which he has produced in his evidence along with the letter dated 13.08.2019 issued by police of P.S. Surjani town referring the victim to the hospital for treatment. In his evidence, he has also described the reason/motive inciting appellants to get angry and commit the alleged offence on 13.08.2019. He has also produced memo of arrest of appellants Jibran and Farhan, who were arrested on 14.08.2019. He has also produced memo of place of incident in his evidence.

6. Next witness examined by the prosecution is the victim herself namely Chanda. She in her evidence has disclosed that on the day of incident she was present in her house when they heard a knock on the door, hence her younger brother in law namely Ronit went to open the door. After that, she heard voices, hence her mother in law went outside, she followed her. Outside the house, she spotted the appellants present who threw acid on her. Her mother in law called her father in law, who took her to P.S. and after obtaining the letter for treatment, he took her to Abbasi Shaheed Hospital where she was provided medical treatment. She has also described various steps of investigation consisting of inspection of place of incident, recording of her statement, handing over of her burnt clothes to the I.O. She has also revealed that at the time of incident she was pregnant.

7. P.W.3 SI Muhammad Ismail has narrated entire story of investigation i.e. that after receiving information, he went to place of incident, inspected the same and prepared such memo as well as sketch of place of incident. He also took photographs of place of incident and victim, which he has produced in his evidence and which shows burnt marks on her various parts of body. He also recorded statements of witnesses under section 161 Cr.P.C, sending letter to Chemical Examiner for examination of clothes and chemical examiner's letter returning the property due to non-availability of such facility to verify kind of acid on the clothes of victim. He however has produced entire such property in the court in his evidence apart from sketch of place of incident and photographs of the victim and her clothes. Prosecution has then examined the Women Medico Legal Officer Dr. Samya Sahar. She has stated that on 14.08.2019 when she was available on duty at Abbasi shaheed Hospital, the victim was referred to her along with police letter. She examined her and found 9% burnt marks on her body. Detailing the same, she has revealed that neck was burnt 1 ½ %, interior trunk 2%, posterior trunk 3%, left arm half%, right leg half%, left leg half%. She has further stated that she reserved the final report and referred the victim for plastic surgery opinion. After she received the opinion on 04.02.2020, she declared the injuries as Itlaf-e-salahiyat udw. The last witness examined by the prosecution is ASI Muhammad Arshad, he on 14.08.2019 had arrested accused Jibran and Farhan, the appellants.

8. A perusal of evidence of all the witnesses shows that prosecution has succeeded in discharging burden of proving the charge against the appellants. The victim has unequivocally revealed that all the appellants, who were already known to her being neighbors had thrown acid on her. Her evidence is consistent with the revelations made by WMLO, who has opined that there was 9% of burnt marks on various parts of her body including neck, arm, legs and trunk.

9. Learned counsel in defence has argued that no specific role has been assigned to any of the appellants. It may be stated that in the cases of acid throwing, it is not necessary to specifically name the accused out of multiple accused when all have been specifically stated to have acted conjointly in conjunction with each other in throwing acid on the victim. In this case, the victim was available in the house, when all three appellants came at the door of her house together and when she after hearing commotion between appellants and her family members, came out of the house, they threw acid on her. The act of appellant's i.e. coming at the house of victim together show meeting of their minds, besides the fact that they were acting conjointly in furtherance of their common intention. The victim sustained multiple injuries from the acid is not only established from the medical opinion of P.W.4 but the police letter, different memos prepared by the police during investigation and evidence of the victim herself.

10. Learned defence counsel during arguments also drawn my attention to the statements of appellants under section 342 Cr.P.C and urged that appellants have been implicated in this case due to property dispute. However, the entire record is silent regarding any proof of dispute between the parties over any property. Even description of the property or any details in respect of which, has not been disclosed by the appellants in their statements. Moreover, it is settled proposition of law that when specific plea is taken by the accused in defence, burden is upon him to establish the same. Here, the appellants have taken a specific plea of being arrayed in the case due to property dispute but have failed to bring on record any material remotely suggesting that parties were on loggerhead on account of any dispute over property. It appears that over a petty issue viz. removing electricity wire belonging to them from rainy water, they disputed with complainant party and later on threw acid on the victim, as a result of which she sustained multiple burnt injuries on her body proved by the medical certificates.

11. Prosecution has also brought on record the fact that the clothes of the victim were in fact referred to the office of Chemical Examiner for his opinion but due to non-availability of facility, the clothes were returned by him. The WMLO has however given her opinion in evidence that injuries sustained by the victim have caused permanent disfigurement to her and are Itlaf-e-salahiat udw falling under section 336-B P.P.C. which provides for punishment for hurt by corrosive substance. It spells out that whoever cause hurt by corrosive substance, shall be punished with imprisonment for life or the punishment which shall not be less than 14 years and minimum fine of Rs.One million. In the present case, the prosecution has established the fact that victim sustained injuries as a result of throwing acid on her body by the appellants by producing evidence of victim supported by outcome of the investigation and medical opinion.

12. There is nothing on record to show that the appellants have been falsely implicated in this case out of any motive or enmity between the parties. In the lengthy cross-examination to which the complainant and victim have been subjected, no material contradiction has come on record suggesting false implication of the appellants in the case. The WMLO has not only produced initial notes prepared by her at the time of examination of the victim but the supplementary medical report on the basis of opinion of surgery department confirming that victim has sustained permanent disfigurement as a result of burnt injuries. The evidence from all aspects is complete and point to the common and joint role played by all the appellants. The appellants were charged under section 336-B P.P.C. and have been convicted and sentenced under the same provision of law, which provides minimum punishment as 14 years and which has been awarded by the appellant.

2025 P Cr. L J 1181

[Sindh (Mirpurkhas Bench)]

Before Muhammad Saleem Jessar, J

Jurial Shah alias Jani Shah---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-108 of 2024, decided on 24th June, 2024.

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

----Ss. 497(2) & 498---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], S. 9(1)(3)(b)---Possession of narcotic substance---Pre-arrest bail, grant of---Further inquiry---Rule of consistency---Nothing had been recovered from the possession of applicant nor he was available at the time of offence and his name had been disclosed/taken by co-accused before police, which could not be made basis for maintaining conviction against him----Co-accused, from whose possession alleged contraband was secured, had been bailed out by the Trial Court and case of applicant was on better footing than that of co-accused, thus, propriety of law demanded applicant should be treated at par by extending him a constant treatment---Punishment provided by law for the alleged offence did not fall within the prohibitory clause of S.497, Cr.P.C., thus, bail in such like cases was a rule and refusal an exception---Case required further inquiry within the meaning of S.497(2), Cr.P.C.---Petition for grant of pre-arrest bail was allowed, in circumstances.

Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 and Muhammad Tanveer v. The State PLD 2017 SC 733 rel

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

----S. 498---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], S. 9(i)(3)(b)---Possession of narcotic substance---Pre-arrest bail, grant of---Registration of series of other FIRs---Non-conviction---Ground for rejection of bail---Scope---Each case has its own merit and one cannot be penalized upon the basis of list of other cases; more particularly when he has not been shown convicted in any of the offences by the competent court of law.

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

----S. 498---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], S. 9(1)(3)(b)---Qanun-e-Shahadat (10 of 1984), Arts.38 & 39---Possession of narcotic substance---Pre-arrest bail, grant of---Confession of co-accused before police---Implication of accused/applicant on the statement of co-accused---Extra-judicial confession---Scope---Confession of co-accused cannot be made basis for maintaining conviction against any individual and the statement so made by co-accused before police is in violation of Arts. 38 and 39 of Qanun-e-Shahadat, 1984.

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

----S. 498---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], S. 9(i)(3)(b)---Possession of narcotic substance---Pre-arrest bail, grant of---Presumption of innocence---Every accused is presumed to be blue eyed boy of law until and unless he is found guilty of alleged charge and law cannot be stretched upon in favour of prosecution particularly at bail stage.

Applicant in person.

Shahzado Saleem, Additional P.G Sindh for the State.

Date of hearing: 24th June, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, applicant Jurial Shah alias Jani Shah seeks his admission on pre-arrest bail in Crime No.16 of 2024, for offence under section 9(i) (3) (b) CNS (Amendment) Act, 2022 registered with P.S Kaloi. The applicant preferred his anticipatory bail before the Court of Sessions wherefrom it was assigned to Addl. Sessions Judge-I/MCTC, Tharparkar at Mithi vide Criminal Bail Application No.09 of 2024, who after hearing the parties, has turned down his request through order dated 31.05.2024. Hence, instant bail application has been maintained.

1. The crux of the prosecution case as unfolded by the complainant/ ASI Allah Dino of PS Kaloi are that on 22-05-2024 he along with his subordinates namely PC Jumoon and PC Allah Jurio duly armed with official ammunition and weapons, boarded on government vehicle bearing No.SPF-277 together with driver PC Muhammad Arab left the PS vide daily diary entry No. 11 at 1600 hours for patrolling as well arresting of drug peddlers in the area. After visiting different places when they reached Shakoor Stop at main road where they received spy information that one Gomando is selling charas. Upon receipt of such information, they proceeded towards pointed place and saw a person was standing on western side of the road who on seeing them attempted to flee away but was apprehended by police party. On his body search, a black color polythene bag containing small pieces of charas was secured. Due to non-availability of private persons, he by citing his subordinates as mashirs enquired from him of his whereabouts who disclosed his name to be Gomando. On further enquiry, he disclosed that he used to sale the contraband of one Jurial Shah alias Jani Shah son of Lutuf Ali Shah (the applicant). The shopper secured from the accused was unfolded, which contained small pieces of charas. On weighing it became 550 gram of chars. On his body search, cash amount of Rs.500/= was also secured. To such effect present FIR was lodged.

2. Applicant is present in person; however, his counsel is not in attendance without intimation. He submits that he has got no nexus with co-accused Gomondo from whose possession the alleged Charas weighing 550 grams was secured, has been bailed out by trial court. He, therefore, submits he is innocent and prayed for confirmation of bail.

3. On the other hand, learned Additional P.G appearing on behalf of State opposes the bail application; however, does not controvert the fact that neither applicant was present at the place of incident nor any incriminating was secured from his possession so also he has been implicated in this case on the statement of co-accused Gomondo.

4. Heard and perused.

2025 P Cr. L J 1197

[Sindh (Larkana Bench)]

Before Adnan-ul-Karim Memon and Muhammad Saleem Jessar, JJ

Mumtaz Ali and 2 others---Petitioners

Versus

SHO PS ghaibi Dero, District Kamber-Shahdadkot and 4 others---Respondents

Constitutions Petition No. D-156 of 2025, decided on 19th March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A---Constitution of Pakistan, Art. 10-A---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 148 & 149---Constitutional petition---Fair trial---Subsequent investigation---Petitioners, accused of triple murder, claimed that they were falsely implicated due to political vendetta by a local MPA---Despite a subsequent police investigation by DSP, that exonerated them and identified other suspects, the police had not filed a supplementary report with the Trial Court---Petitioners requested the Court to compel the police to submit the exonerating supplementary report with the Trial Court---Held, that reinvestigation should be reserved for cases where fairness and impartiality demand it, and should not be ordered routinely after challan submission without valid justification---Reinvestigation could not be used to protect influential individuals---Trial Court could address any investigative defects and accused persons benefit from any technical flaws, ensuring a fair trial under Art.10-A of the Constitution---Indiscriminate reinvestigation would lead to endless delays and undermine criminal justice---In the present case, cognizance had already been taken and at present stage, the submission of the report, exonerating some of the accused in the subject crime, was to be looked into by the Trial Court at the appropriate stage and interference by High Court in that regard was uncalled for---Trial Court had already initiated trial proceedings, and ordering the submission of a report at this stage was unnecessary---Petitioners retained the right to present the supplementary report as evidence during their defence, specifically when their statements under S.342, Cr.P.C were recorded and by examining the Investigating Officer---Petition was dismissed, in circumstances.

Hakim Mumtaz Ahmed v. The State PLD 2002 SC 590; Muhammad Akbar v. The State 1972 SCMR 335; Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab and others 2014 SCMR 1499 ; Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924 and Raja Khursheed Ahmed v. Muhammad Bilal 2014 SCMR 474 rel.

Habibullah G. Ghouri along with Petitioners.

Liaquat Ali Shar, A.A.G along with DSP Sirajuddin Lashari, RRF/CMU Base Hyderabad, SIP Zulfiqar Mugheri, on behalf of SSP Kamber Shahdadkot and Insp. Azhar Hussain Memon, SHO P.S. Ghaibidero.

Date of hearing: 19th March, 2025.

Order

Adnan-ul-Karim Memon, J.---The petitioner requests that the court order Respondents 1-4 to file a supplementary report under Section 173 of the Criminal Procedure Code (Cr.P.C) with the trial court. This report should include all evidence and materials collected by Respondent 4 during the further investigation of Crime No. 09/2024 (P.S. Ghaibi Dero, Sections 302, 337-H2, 148, 149 of the Pakistan Penal Code [P.P.C.]) and its related case, Crime No. 10/2024 (P.S. Ghaibi Dero, Section 24 of the Sindh Arms Act [SAA]).

1. The petitioners, accused of triple murder, claim they were falsely implicated due to political vendetta by a local MPA, Nawab Sardar Ahmed Khan Chandio. They allege the murders stemmed from the community feud of Karo Kari. Despite a subsequent police investigation by DSP Sirajuddin Lashari that exonerated them and identified other suspects, the police have not filed a supplementary report with the trial court. They assert wrongful arrest, false identification, and politically motivated accusations, including against a polio vaccinator. They provide CDR records as evidence of their absence from the crime scene. The learned counsel for the petitioners submits that their rights to a fair trial and personal safety are being violated and requests the court to compel the police to submit the exonerating supplementary report with the trial court.

2. Police have confirmed the registration of triple murder and arms possession charges. An initial investigation was completed and a challan was submitted. Subsequently, following an order from the DIGP Larkana dated August 27, 2024, under Article 18(4) of the Sindh Repeal of Police Act 1861 and Revival of Police Order 2002 (Amendment) Act 2019, the case was transferred to DSP Abdul Qudoos Kalwar then to DSP Siraj Ahmed Lashari on the request of the petitioners, for further investigation after the trial court took cognizance. The case is currently undergoing trial in a model court and proceedings under sections 87 and 88 Cr.P.C are underway.

3. Learned AAG submitted that a case could not be reinvestigated or further investigated under Article 18(4) of the Sindh Repeal of Police Act 1861 and Revival of Police Order 2002 (Amendment) Act 2019, after the commencement of trial, Therefore, the Order was without jurisdiction and the transfer of investigation to DSP Siraj Ahmed Lashari was void. At this stage learned counsel for the petitioner submits that the law neither prohibits reinvestigation nor further investigation of a criminal case even after the commencement of trial.

4. We have heard arguments and perused the record with the assistance of learned counsel for the parties present in Court. It appears that the complainant of the subject FIR has not been made a party in the proceedings, therefore, the notice could not be issued to him to put forward his plea. However, the issue involved in the present proceedings is a simple one, whether the recommendation for re-investigation/further investigation of the subject crime can be ordered by the DIGP Larkana Range, after submission of the challan and taking cognizance by the trial Court.

5. To appreciate the aforesaid proposition, it is expident to refer to Section 4(I) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code" or "Cr.P.C."), which defines the term "investigation" as follows:

(I) "Investigation".- "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

1. A fair investigation is essential for a fair trial, a right protected by Article 10A of the Constitution. The Supreme Court of India, in Babubhai v. State of Gujrat, affirmed that a fair investigation is also fundamental to the right to life and personal liberty, and a crucial component of the rule of law. Police Rule 25.2(3) of 1934 mandates that investigating officers must uncover the truth and present it to the court. This rule underscores the importance of an impartial and thorough invest. It is reproduced below for ready reference:

25.2 Power of investigating officers:

(1) ....

(2) ...

(3) It is 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.

1. Section 173 of the Criminal Procedure Code (Cr.P.C.) requires investigations to be completed promptly. Upon completion, the police station in-charge must submit a report to the Magistrate through the Public Prosecutor. If the investigation exceeds 14 days, an interim report must be submitted within three days of that deadline, detailing the investigation's progress. The court should then commence the trial, barring justifiable delays. The Supreme Court of Pakistan, in Hakim Mumtaz Ahmed v. The State (PLD 2002 SC 590) declared these provisions mandatory, citing that non-compliance violates Articles 4 and 9 of the Constitution. The Supreme Court further stated:

"... on completion of period of police remand under section 167 Cr.P.C. if final or interim report has not been submitted the magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of section 173(1) Cr.P.C. or record reasons for remanding the accused to judicial custody for want of challan in terms of section 344 Cr.P. C. and simultaneously direct initiation of departmental proceedings against the police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers ..."

1. Neither the Criminal Procedure Code nor the Police Rules of 1934 provided a method for transferring criminal investigations between police officers. This gap was addressed by the (Amendment) Act.2019.

2. The question as to whether the investigation can be changed or, to put it in another way, whether a case can be reinvestigated or further investigated after the submission of the final report under section 173 Cr.P.C. (and, more particularly after the accused is/are indicted) is quite contentious. There are two streams of decisions of the Supreme Court on this point. It is trite that in such eventuality the one rendered by the Larger Bench prevails. Therefore, this Court is obligated to follow the dictum laid down in Muhammad Akbar v. The State (1972 SCMR 335) because that decision was handed down by a 4-member Bench while all others have come from Benches of low numeric 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." The oft-quoted case Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab and others (2014 SCMR 1499) that takes the opposite view was decided by a 3-member Bench. Further, it was passed on a petition refusing leave to appeal.

3. It is true that at times reinvestigation or further investigation may bring on record conflicting evidence and contradictory opinions of the police officers. In such eventuality, the court has to evaluate them under the established principles of criminal jurisprudence and rules of evidence to reach a correct decision. In Muhammad Ashfaq v. Amir Zaman and others (2004 SCMR 1924), the Supreme Court held:

2025 P Cr. L J 1211

[Sindh]

Before Zafar Ahmed Rajput and Tasneem Sultana, JJ

The STate through Prosecutor General Sindh---Applicant

Versus

Administrative Judge, Anti-Terrorism Courts, Clifton, Karachi thorugh Registrar, ATCs, Home Department, Karachi and another---Respondents

Criminal Revision Applications Nos. 35 to 38 of 2025, decided on 28th February, 2025.

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

----Ss. 7 & 19(1)---Criminal Procedure Code (V of 1898), Ss. 63, 167 & 169---Penal Code (XLV of 1860), S. 365-A---Abduction for ransom---Physical remand---Refusal---Scope---Physical remand of the accused was declined and Joint Investigation Team was constituted---Validity---Record showed that the son of the lady complainant was abducted---Police after obtaining search warrant from the Judicial Magistrate raided the house of the accused for search and arresting a suspected accused, who acted within the meaning of "terrorism" as defined under S.6 of the Act of 1997 by offering serious armed resistance causing bullet injuries to a DSP and a police constable---Police recovered heavy arms and ammunition, as per details mentioned in the remand reports, from the house of accused, who had previous criminal record---As such, sufficient grounds were available for believing that the accusation or information against the accused was well-founded for justifying his detention in police custody for further investigation by the police in the cases registered against him---It appeared from the perusal of the record that the material relating to the case(s) was transmitted by the Second Investigation Officer to the Administrative Judge but the latter declined police custody remand of the accused merely on the complaint of the accused regarding maltreatment---In such state of affairs, the proper course available to the Administrative Judge was remanding the accused for a short term to custody of police with direction to Investigating Officer to produce him before Medico-Legal Officer and in case there appeared from Medico-Legal Certificate that any bodily harm was caused to accused during remand, Administrative Judge was fully competent to take action in accordance with law against the Investigating Officer instead of remanding the accused to judicial custody to frustrate and defeat the investigation of heinous offences---Notable fact of the case was that none of the parties made any request for constitution of Joint Investigation Team to probe the case---Administrative Judge under the law was not vested with the power to pass such order---Under S.19(1) of the Anti-Terrorism Act, 1997 (Act of 1997), it was prerogative of the Government, if deemed necessary, to constitute Joint Investigation Team---Thus, the Administrative Judge had failed to appreciate the request of the second Investigating Officer for grant of police custody/remand of the accused, therefore, impugned orders granting remand of accused in judicial custody instead of police custody were illegal, arbitrary and against the law, which were likely to affect the investigation of the said crimes---By passing impugned order of constituting Joint Investigation Team, the Administrative Judge had exceeded his jurisdiction---In such circumstances, impugned orders were set-aside with direction to Investigation Officer of the cases to produce the custody of the accused before the Judge, Anti-Terrorism Court, for passing orders afresh in accordance with law---Criminal revision applications were allowed accordingly.

Muntazir Mehdi, Acting Prosecutor General and Muhammad Iqbal Awan, Additional Prosecutor General, along with Police Inspector Amir Ashfaque for the State.

Nemo for Respondent No. 1.

Respondent No. 2 present in judicial custody on notice).

Date of hearing: 18th February, 2025.

Order

Zafar Ahmed Rajput, J.---By this common order, we intend to dispose of above mentioned four Cr. Revision Applications, as the same being arisen out of common facts and identical impugned orders, have been heard by us together.

1. Criminal Revision Application No. 35 of 2025 has been preferred by the State against the order, dated 11.02.2025, passed on application/Report under section 21-E of the Anti-Terrorism Act, 1997 ("Act of 1997") submitted by the Police Inspector Amir Ashfaque of P.S. AVCC/CIA, Karachi, the Second Investigating Officer ("Second I.O.") of the case, seeking police custody of the Respondent No.2/accused- Armaghan alias Army son of Kamran Asghar Qureshi- in Crime No. 12 of 2025, registered at P.S. Darakhshan, Karachi under sections 365, 365-A, P.P.C., read with section 7 of the Act of 1997, whereby the Administrative Judge, Anti- Terrorism Courts, Karachi Division ("Administrative Judge") issued directions for constituting Joint Investigation Team ("JIT"). While Cr. Revision Applications Nos. 36 to 38 of 2025 have been maintained by the State against three orders, dated 10.02.2025, whereby the Administrative Judge declined the request of Second I.O. for police custody remand of the accused in Crime Nos. 1, 2 and 3 of 2025, registered at P.S. AVCC/CIA, Karachi under sections 324, 353, P.P.C., read with section 7 of the Act of 1997 and sections 23(1)(a)/25 of Sindh Arms Act, 2013 ("Act of 2013"), respectively.

2. In compliance of this Court's order, dated 17.02.2025, the custody of the accused has been produced by the Senior Superintendent, Central Prison and Correctional Facility, Karachi. Mr. Ali Asghar Mahar, Focal Person, Home Department, Government of Sindh, is present along with R&P of the cases/ remand reports and orders, etc.

3. We have heard the Acting Prosecutor General, accused and perused the record as well.

4. Brief facts of the case(s) are that, on 07.01.2025, complainant- Mst. Wajiha Amir wife of Amir Shuja- lodged FIR No. 12/2025 at P.S. Darakhshan, Karachi under Section 365, P.P.C. for the abduction of her son Muhammad Mustafa, aged 23. The investigation of the said crime was assigned to ASI Iftikhar of the said police station. Subsequently, on 25.01.2025, the complainant received a WhatsApp call demanding Rs. 2 crore as ransom for safe return of her abducted son; hence, sections 365-A, P.P.C. and 7 of the Act of 1997 were added in the FIR and investigation was assigned to Second I.O. who, on 08.02.2025, upon receiving credible spy information regarding involvement of the accused in the said crime obtained Search Warrant from Judicial Magistrate-V, Karachi-South. Thereafter, police conducted raid on the residence of the accused i.e., Bungalow No. 35, street No. 7, Khayaban-e-Momin, DHA-Phase-5, Karachi for his arrest, but he resisted and assaulted with arms on police party inside house. The police party retaliated in defence. The encounter lasted many hours during which DSP, Ahsan Zulfiqar and PC Muhammad Iqbal of P.S. AVCC received firearms injuries at the hands of the accused; however, police party succeeded to apprehend him and securing arms and ammunitions in huge quantity from the house under mashirnama of arrest and recovery. Thereafter, police party returned to P.S. and lodged three FIRs on behalf of the State bearing Crime Nos. 1, 2 and 3 of 2025, referred to above. On the next day i.e. 09.02.2025, police obtained transitory remand of the accused from the Court of concerned Judicial Magistrate and, on 10.02.2025, police produced him before the Administrative Judge for further police custody remand in all four cases with Reports under section 21-E of the Act of 1997; however, the Administrative Judge declined the request of police custody remand of the accused by mentioning that he had complained about maltreatment at the hands of police, and remanded him to judicial custody. On 11.02.2025, the Administrative Judge, passed an order for constituting JIT in Crime No. 12 of 2005.

5. It may be relevant to mention here that in the cases of general jurisdiction under Criminal Procedure Code, 1898 ("Code"), where any person accused of an offence is arrested without a warrant, he, under section 61 of the Code, cannot be detained by the police in their custody beyond period of twenty-four hours, in absence of a special order of a Magistrate under section 167 of the Code. Section 167 ibid, deals with eventuality when within twenty-four hours of the arrest of an accused person, investigation cannot be completed. It envisages that where investigation could not be completed within twenty-four hours fixed by section 61, and there are reasonable grounds for believing that the accusation or information is well-founded, the officer in-charge of the police-station or the police officer making the investigation shall forthwith transmit the accused to the nearest Magistrate whether such Magistrate has or has no jurisdiction to try the case and then such Magistrate from time to time can authorize the detention of the accused in custody of the police but not beyond maximum period of fifteen days. The only ground for granting remand by the Magistrate is to see the nature of accusation and grounds to believe that the same are well-founded against the accused. Hence, it is the duty of the Magistrate to study the police diaries and to see for himself as to what are the accusations against the accused and what is the evidence which the police has been able to secure to justify the detention of the accused in police custody, which is generally understood as "Police Custody Remand". However, in the case of "Scheduled Offences" of the Act of 1997, the Administrative Judge, appointed under section 13 (2) ibid is empowered to exercise all powers mandated for "Remand" under section 21E of the Act of 1997, which provision is in pari materia with sections 61 and 167 of the Code, and for such purposes the Administrative Judge is deemed to be a Magistrate under section 21E (3) ibid.

6. It may be observed that particularly in the case of "Scheduled Offences" of the Act of 1997, police custody remand is a pre-trial step that allows investigating officer to collect evidence and complete his investigation. It is an important part of the criminal justice system because it helps to connect suspects to crimes and build cases for prosecution; it affords investigating officer the opportunity to verify facts, cross-check statements, complete his investigation efficiently and enables him to question the suspect and extract information related to the offense in order to uncover co-accused or criminal networks. Therefore, grant or refusal of police custody remand of an accused must be with judicious application of mind.

7. In the instant case, it is matter of record that the son of the lady complainant was abducted; AVCC/CIA police after obtaining search warrant from the Judicial Magistrate raided on the house of the accused for search and arrest being a suspected accused, who acted within the meaning of "terrorism" as defined under section 6 of the Act of 1997 by offering and involving in the act of serious armed resistance causing bullet injuries to a DSP and a police constable. Police recovered heavy arms and ammunition, as per details mentioned in the remand reports, from the house of accused, who has previous criminal record. As such, sufficient grounds are available for believing that the accusation or information against the accused is well-founded for justifying his detention in police custody for further investigation by the police in the cases registered against him.

8. It appears from the perusal of the record that the material relating to the case(s) was transmitted by the Second I.O to the Administrative Judge but the latter declined police custody remand of the accused merely on the complaint of the accused regarding maltreatment. The accused also made complaint of maltreatment before us. On our direction, he took his shirt off and there was no visible sign of causing bodily harm to him on upper part of his body; he then stated that he was beaten on his lower part of his body. The MLC issued by the MLO suggests bruises on both buttocks, lateral forehead, left ear, left neck and abrasions below the right ear and elbow of the accused. The MLO has not opined in the MLC if the alleged bruises and abrasions were caused to accused on account of any maltreatment. Second I.O. has stated before us that on 10.02.2025, at about 12:00 noon, he produced the accused before the Administrative Judge for police custody remand who, after keeping him awaited for three hours, verbally directed him for medical examination of the accused; he took the accused to Jinnah Post Graduate Medical Centre, Karachi (JPMC) and after his medical examination, he again produced him before the Administrative Judge in the evening, who remanded the accused to judicial custody. He has further stated that the MLO noted certain bruises on the body of the accused, which he received at the time of his arrest on offering resistance; however, there was no element of maltreatment.

9. Even in such state of affairs, the proper course available to the Administrative Judge was to remanding the accused for a short term to custody of police with direction to I.O. to produce him before MLO and in case there appeared from MLC that any bodily harm was caused to accused during remand, Administrative Judge was fully competent to take action in accordance with law against the I.O. instead of remanding the accused to judicial custody to frustrate and defeat the investigation of heinous offences. It may be observed that the Magistrates and Administrative Judges are answerable and accountable to the High Court for the illegalities and irregularities done by them in exercising their powers under section 167 of the Code and 21E of the Act of 1997 and the High Court under section 439 of the Code is quite competent to examine the correctness of orders passed by them.

10. It is also matter of record that the Administrative Judge passed the impugned remand orders not on the separate papers but on the Reports submitted by the Second I.O. under section 21-E of the Act of 1997. The orders are not in his handwriting but in typed forms. It can be seen at a glance that the Administrative Judge passed the orders for police custody remand of the accused but, afterward, he by using whito correction pen on words "police custody" remand made hand correction "JC" remand without initials. Acting Prosecutor General has orally stated that at the time of remand, the father of the accused was sitting in the chamber of the Administrative Judge for two hours, and it was subsequent act of the latter, who changed his police custody remand orders in JC remand.

2025 P Cr. L J 1223

[Sindh (Sukkur Bench)]

Before Zulfiqar Ahmad Khan, J

Mst. Sidra---Petitioner

Versus

Province of Sindh, through Secretary Home Department Sindh and others---Respondents

Constitution Petition No. S-20 of 2025, decided on 17th March, 2025.

Criminal Procedure Code (V of 1898)---

----S.491---Penal Code (XLV of 1860), S.361---Constitution of Pakistan, Art.199---Custody of minor---Minor snatched by father---Attempt to alter minor's birth record---The petitioner (mother), filed a petition seeking the return of her minor son, who was allegedly forcibly and unlawfully taken from her custody by her ex-husband, respondent No.4, and his family---The petitioner gave birth to minor son on 25.04.2023 with the birth certificate listing her as the biological mother---On 10.11.2024, respondents Nos.4 to 6 forcibly took custody of the minor son from the petitioner's home---Subsequently, respondent No.4 attempted to manipulate the birth records to falsely present respondent No.5 whom he had previously married, as the child's mother---Held: Upon careful examination of the facts and arguments of the parties, it was evident that this case involved serious violation of the petitioner's rights as a mother and legal guardian of her minor child---The crux of the issue was the unlawful and forcible removal of the child from the petitioner's lawful custody by respondent No.4 and his family, along with the attempt to alter the child's birth records to reflect respondent No. 5 as the mother, which amounted to a clear violation of both family law and criminal law provisions---The claim by respondents that minor son was born to respondent No. 5, and that the birth records were manipulated by the petitioner was without merit---The certificate from hospital the confirmed the petitioner as the mother, and no credible evidence was presented to challenge this fact---The forcible removal of minor son from the petitioner's custody on 10.11.2024, coupled with the threats and coercion allegedly used by respondent No.4, clearly amounted to a criminal act under S.361, P.P.C, which defined kidnapping and provided a legal framework for the protection of the natural guardianship of children---The actions of respondent No.4 constituted a clear violation of the petitioner's fundamental rights as a mother and guardian under both family law and criminal law---The activities of respondent No.4 and his family, particularly the snatching of the child, fell within the ambit of kidnapping and unlawful detention, justifying the intervention of the High Court under S.491, Cr.P.C, as the High Court had to ensure that justice was served in a timely and fair manner---It was clear that the respondent No.4's actions were unlawful and must be rectified---The petitioner, as the biological mother and natural guardian of minor son, had every right to seek the restoration of custody, and the High Court found that such a claim was both legally and factually justified---Hence, Constitutional petition was allowed by handing over the custody of the minor child to the petitioner.

Abdul Baqi Jan Kakar for Petitioner.

Sundar Khan Chachar for Respondents.

Ali Raza Baloch, Additional Advocate General Sindh.

Date of hearing: 17th March, 2025.

Order

Zulfiqar Ahmad Khan, J.---This petition has been filed by the petitioner (Mst. Sidra), seeking the return of her minor son, Ali Abbas, from the unlawful (snatched) custody of her ex-husband, respondent No.4 (Zaib Hassan), and his family.

1. It is the case of the petitioner that she married to her cousin, respondent No.4, on 22.07.2022. The marriage was arranged with the consent of both families, following a proposal from respondent No.4, due to the illness of his mother, respondent No.6 (Mst. Khalida), who is aunt of the petitioner. At the time of the marriage, respondent No.4 promised the petitioner that he would resolve his family issues amicably. The petitioner, in good faith, agreed to marry respondent No.4. However, despite the agreed-upon dower (mehr) of Rs.1,00,000/-, respondent No.4 failed to pay the amount.

2. It is significant to note that, prior to his marriage to the petitioner, respondent No.4 had been married to respondent No.5 (Mst. Hira), who had left him due to matrimonial disputes. A few months after the marriage of the petitioner, respondent No.4 reunited with his first wife, Mst. Hira. After a short-lived period of cohabitation, the petitioner was forcibly evicted from her husband's house by respondents Nos.4, 5 and 6, without her consent and against her will.

3. On 21.11.2022, while the petitioner was pregnant, respondent No.4 sent a backdated (07.08.2021) divorce deed to the petitioner, despite the fact that their marriage occurred on 22.07.2022. This action was not only legally improper but highly misleading. The petitioner, despite this unlawful divorce, gave birth to a son, Ali Abbas, on 25.04.2023 at Rangers Hospital, Sukkur. The birth certificate, issued by Dr. Tahira Mahar, names the petitioner as the mother of the child. However, on 10.11.2024, respondents Nos.4 to 6 forcibly took custody of Ali Abbas from the petitioner's residence, with respondent No.4 allegedly threatening the petitioner and her family with a pistol. This unlawful act was followed by an attempt to manipulate the birth records of Ali Abbas to falsely claim that respondent No.5, Mst. Hira, is the mother of the child.

4. Learned Counsel for the petitioner argued that the first marriage of respondent No.4 was solemnized with respondent No.5, Mst. Hira, in August 2018. After their marriage disputes started between them, which ultimately led to the separation of Mst. Hira from respondent No.4. In the meanwhile, respondent No.4 snatched baby Zainab Fatima from her mother (respondent No.5), and she filed an application under Section 491, Cr.P.C for her recovery. Subsequently, respondent No.4, due to the illness of his mother, married to the petitioner on 22.07.2022. A few months after this marriage, respondent No.4 reconciled with his first wife, Mst. Hira, and divorced the petitioner on 21.11.2022. At the time of this divorce, the petitioner was pregnant, and she gave birth to a son, Ali Abbas, on 25.04.2023, but the child was unlawfully snatched from his mother on 10.11.2024. Learned Counsel highlighted that the petitioner had filed two applications under Section 491, Cr.P.C before the lower Court, seeking the restoration of her son's custody. Despite the dismissal of these applications, the petitioner has continued her legal battle, by now seeking this Court's intervention for the recovery of her son.

5. On the other hand, learned Counsel for the respondents contended that the minor, Ali Abbas, who is currently present before the Court, was born to respondent No.5 at home under the supervision of a midwife. He further argued that the minor received vaccination and that the vaccination card was issued in the name of his mother, Mst. Hira. He contended that the petitioner had changed her statements in her applications under Section 491, Cr.P.C, adding number of persons and weapon in the second application who were allegedly involved in the forcible snatching of the child. Learned Counsel further argued that since the petitioner's father was a policeman, the police supported her claim. He emphasized that there are conflicting versions of the facts regarding the birth of Ali Abbas and his custody, with the respondents asserting that the child was born to respondent No.5 and that the birth certificate was issued in her name. He contended that, due to these conflicting claims, the lower Court and this Court, exercising its jurisdiction under Section 491 Cr.P.C, cannot engage in a detailed examination or appreciation of evidence. He has relied upon the cases of Muhammad Afzaal v. Sessions Judge, Multan and 3 others (PLD 2008 Lahore 479), Zahid Pervaiz v. Khurram Islam and 2 others (2018 PCr.LJ 613), Muhammad Riaz v. The State and others (2020 MLD 1595), Sumayyah Moses v. Station House Officer, Faisalabad and 3 others (PLD 2020 Lahore 716), Rashid Khan v. Mst. Momna Jadoon and another (2021 MLD 725) and Nisaar Bibi v. Federation of Pakistan through Secretary of Interior, Islamabad and 7 others (2021 YLR 2334).

6. Learned AAG Sindh submitted his written synopsis where he stated that respondent No.4 failed to pay the dower amount to the petitioner, which was agreed upon at the time of marriage. This violation entitles the petitioner to recover the dower amount. He contended that the divorce pronounced by respondent No.4 on 21.11.2022 was invalid as the petitioner was pregnant at that time. According to settled law, a divorce during pregnancy does not take effect until after the child is born, and the husband is obligated to provide maintenance during this period. He argued that the petitioner is entitled to claim the expenses incurred during the pregnancy and the delivery of her child, as her ex-husband failed to meet his obligations under the law. It is also contended that respondent No.4 failed to register his marriage with the petitioner under the Muslim Family Laws Ordinance, 1961, which mandates the registration of all marriages. The failure to comply with this requirement constitutes a violation of the law. It is also argued that respondent No.4 contracted another marriage without respondent No.5's consent, violating Section 6 of the Muslim Family Laws Ordinance, 1961, which requires the prior approval of the Arbitration Council for a man to marry another woman during the subsistence of his marriage. The most significant legal argument presented is that respondent No.4 unlawfully removed Ali Abbas from the petitioner's custody, constituting kidnapping under Section 361, P.P.C. He further contended that this unlawful act of taking the child away violated the petitioner's rights as the natural guardian of her child.

7. Learned AAG Sindh stated that the actions of respondent No.4 were in clear violation of the provisions of the Muslim Family Laws Ordinance, the Pakistan Penal Code, and established Family Law principles. He emphasized that the unlawful removal of the minor child from the petitioner's custody amounted to an offense of kidnapping, and the petitioner is entitled to the return of her son under Section 491, Cr.P.C, which empowers the Court to issue a writ of habeas corpus in such cases. He has placed reliance upon the cases reported as 1995 MLD 121, PLD 2001 SC 31, PLD 2002 SC 273, 2018 PCr.LJ 1328, 2019 PCr.LJ 890 and PLD 2020 SC 613.

8. Upon careful examination of the facts and arguments of the parties, it is evident that this case involves a serious violation of the petitioner's rights as a mother and legal guardian of her minor child, Ali Abbas. The crux of the issue is the unlawful and forcible removal of the child from the petitioner's lawful custody by respondent No.4 and his family, along with the attempt to alter the child's birth records to reflect Mst. Hira as the mother, which amounts to a clear violation of both family law and criminal law provisions.

9. The petitioner, Mst. Sidra, married to respondent No.4 on 22.07.2022 with consent from both families, under the belief that his assurances regarding family issues would be honoured. However, it quickly became apparent that respondent No.4's conduct was inconsistent with his promises. It is undisputed that during the course of the marriage, respondent No.4 failed to meet his obligations, including the payment of the agreed dower amount (mehr) of Rs.1,00,000/-, and eventually, divorced the petitioner while she was pregnant. The forcible eviction and subsequent actions of respondent No.4 show a clear disregard for the rights of the petitioner.

10. Respondent No.4 has admitted that while he claims Ali Abbas was born to respondent No.5 in his home, assisted by a midwife named Shahzadi, he also revealed that his other children were delivered in medical centers; specifically, he mentioned the Cure Medical Centre, Sukkur. However, when questioned about the whereabouts of midwife Shahzadi, respondent No.4 stated that she had died. This statement raises serious concerns about the credibility of his claims and suggests an attempt to conceal the true circumstances surrounding the birth of Ali Abbas. The lack of corroborative evidence and the inability to produce a medical record to support his claims about Shahzadi only serve to develop the suspicion that respondent No.4 is deliberately trying to obscure the truth, which, as per the petitioner's medical records, including the birth certificate issued by Dr. Tahira Mahar, is that Mst. Sidra is the biological mother of Ali Abbas, born on 25.04.2023.

11. In addition to the confusion surrounding the birth of Ali Abbas, respondent No.4 was similarly unclear regarding the matter of the agreed-upon dower (mehr). Initially, respondent No.4, through his learned Counsel, claimed that the mehr had been paid to the petitioner at the time of marriage. However, upon reviewing the photocopy of the nikahnama submitted by the respondents' Counsel, it has been revealed that the document clearly states that the mehr was to be paid later. Respondent No.4, when confronted with this fact, became contradictory. He initially claimed that the issue of mehr had been settled between him and the petitioner's father. Yet, when the petitioner responded that her father had passed away; therefore, respondent No.5 is lying to usurp the mehr, respondent No.4 failed to provide any answer. This inconsistency further suggests that respondent No.4 is attempting to cover up the lack of payment of the mehr and avoids taking responsibility for his obligations as stipulated in the nikahnama.

12. Moreover, learned Counsel for the respondents, while arguing that this Court cannot probe into the details of the matter under Section 491, Cr.P.C, illogically suggested that the petitioner's motives were driven by greed; specifically, an alleged desire to obtain a flat or property belonging to respondent No.4. This claim contradicts the respondents' earlier arguments, as it shifts the focus from the actual legal issues regarding the unlawful custody of Ali Abbas to personal, unfounded allegations about the petitioner's intentions. Such a defense is not only irrelevant to the case at hand but also further demonstrates the respondents' attempt to divert attention from their unlawful actions. The inconsistency between the respondents' arguments highlights the lack of a coherent defense and only strengthens the petitioner's position that she is entitled to the return of her son, Ali Abbas, and the compensation of her rights.

13. The claim by respondents that Ali Abbas was born to Mst. Hira, and that the birth records were manipulated by the petitioner is without merit. The certificate from Rangers Hospital, Sukkur, confirms the petitioner as the mother, and no credible evidence has been presented to challenge this fact. The forcible removal of Ali Abbas from the petitioner's custody on 10.11.2024, coupled with the threats and coercion allegedly used by respondent No.4, clearly amounts to a criminal act under Section 361, P.P.C, which defines kidnapping and provides a legal framework for the protection of the natural guardianship of children. The actions of respondent No.4 constitute a clear violation of the petitioner's fundamental rights as a mother and guardian under both family law and criminal law.

14. The activities of respondent No.4 and his family, particularly the snatching of the child, fall within the ambit of kidnapping and unlawful detention, justifying the intervention of this Court under Section 491, Cr.PC, and this Court has to ensure that justice is served in a timely and fair manner.

15. The record shows that respondent No.5 (Mst. Hira), who is the first wife of respondent No.4, had previously filed an application under Section 491, Cr.PC for the recovery of her daughter, Zainab Fatima. This application was filed when respondent No.5 had been forced to leave respondent No.4's house and was residing at her parent's residence due to the ongoing matrimonial disputes. The contention in her application was that respondent No.4 had unlawfully taken their daughter away from her, and despite repeated efforts, had refused to return her to her lawful custodian, Mst. Hira. This act was a clear indication of respondent No.4's pattern of marrying women, forcibly ousting them from his home, and subsequently snatching their suckling children after birth. These recurring actions reflect a deeply concerning and habitual pattern of behavior by respondent No.4, aimed at denying his wives their lawful rights over their children. The petitioner, Mst. Sidra, being his second wife, is now experiencing the same pattern of abuse, with her child, Ali Abbas, forcibly taken from her custody. Such behavior highlights not only the respondent No.4's disregard for the legal and moral rights of his spouses but also his consistent violation of family laws meant to protect the welfare and rights of women and children. This pattern of behavior must be addressed thoroughly to prevent further injustices and to uphold the petitioner's lawful claims for the restoration of her child.

16. In light of the foregoing, it is clear that the respondent No.4's actions were unlawful and must be rectified. The petitioner, as the biological mother and natural guardian of Ali Abbas, has every right to seek the restoration of custody, and this Court finds that such a claim is both legally and factually justified. Hence, this petition is allowed by handing over the custody of the minor child, Ali Abbas, to the petitioner, Mst. Sidra, in Court. Moreover, further observations of this Court are as follows:

(i) SHO concerned is directed to immediately register an FIR against respondent No.4 for forcibly taking the minor child from the petitioner's lawful custody and for altering the birth records of the child, as per verbatim of the petitioner.

(ii) SSP concerned is directed to ensure that no harassment is caused to the petitioner by respondent No.4 in future.

2025 P Cr. L J 1238

[Sindh (Sukkur Bench)]

Before Riazat Ali Sahar, J

Khair Muhammad---Applicant

Versus

The STate and 2 others---Respondents

Cr. Misc. Application No. S-633 of 2024, decided on 13th February, 2025.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 147, 148 & 337-H(2)---Criminal Procedure Code (V of 1898), Ss. 173, 190 & 561-A---Inherent jurisdiction of High Court---Quashing of FIR---Qatl-i-amd, wrongful confinement, assault or criminal force, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, rash or negligent act to endanger human life or personal safety of others---Accused was aggrieved of order passed by Judicial Magistrate through which he did not agree with the proposal of Investigating Officer to let him off in C-class and took cognizance under S.190 Cr.P.C---Validity---In the instant case, the Judicial Magistrate had exercised his jurisdiction in a lawful and judicious manner under S.190, Cr.P.C.---Contention that the applicant was placed in Column No. 2 of the police report did not ipso facto entitle him to exoneration, as the Judicial Magistrate retained the discretion to evaluate the material independently, uninfluenced by the conclusions drawn by the Investigating Officer---Judicial Magistrate was not bound by the opinion of the police and must apply his own judicial reasoning in determining whether sufficient grounds exist for proceeding against an accused---Judicial Magistrate had rightly concluded that a prima facie case was made out against the applicant, warranting further proceedings---Mere assertion of alibi, particularly when it was premised on statements of local persons rather than unimpeachable evidence such as travel records, official logs, or documentary proof, was manifestly insufficient to nullify the cognizance taken by the Judicial Magistrate---An alibi plea, unless supported by irrefutable and cogent evidence, did not per se exonerate an accused at the pre-trial stage---Judicial Magistrate was fully justified in taking cognizance of the matter under S.190, Cr.P.C.---Criminal Miscellaneous Application stood dismissed, in circumstances.

Javed Khan and others v. The State and others 2019 PCr.LJ 1756; Muhammad Ahmad v. The State 2010 SCMR 660; Khalid Hussain v. Asif Iqbal 2021 PCr.LJ 242; Bilal Ahmed v. The State 2021 PCr.LJ 261; Naeem Akhtar v. Judicial Magistrate 2018 MLD 1173; Soomar v. Civil Judge and Judicial Magistrate 2020 PCr.LJ 835; Abdul Rashid v. The State 1989 SCMR 144; Faiz Bakhsh alias Faizu v. The State 1989 SCMR 977; Muhammad Ayub v. The State PLD 1964 Pesh. 288 and Kifayatullah v. The State PLD 1975 Pesh. 131 rel.

Shabir Ali Bozdar for Applicant.

Sardar Ali Shah, APG for the State.

Date of hearing: 30th January, 2025.

Order

Riazat Ali Sahar, J.---Through this Criminal Miscellaneous Application, the applicant assailed the impugned order dated 18.10.2024 passed on the report under Section 173 Cr.P.C, by 1st Civil Judge and Judicial Magistrate, Moro, which pertains to FIR No. 09/2024, registered at Police Station Fareed Dero, for offences punishable under Sections 302, 324, 147, 148, and 337-H(2) P.P.C, whereby the Investigating Officer let off the applicant/accused in "C-class", but learned Magistrate did not agree with the proposal of I.O and took cognizance under section 190 Cr.P.C against him. Being aggrieved by and dissatisfied with the impugned order, the applicant has approached this Honourable Court by way of the present Criminal Miscellaneous Application under Section 561-A Cr.P.C.

1. The case of the prosecution, in brief, is that on 13.06.2024, the complainant, along with his companions, including his brother Ali Gul, aged approximately forty years, Ali Asghar, and Ali Gulam, was returning from their agricultural land when they encountered the accused near the garden of Agib Khan Jatoi at approximately 8:00 p.m. The accused included Gulzar, armed with a 0.44 bore rifle, Dildar, armed with a gun, both sons of Arbab, Arbab, armed with a K.K., Javed, armed with a pistol, both sons of Allan, Rajib, son of Gul Hassan, armed with a K.K., Bakhshal, son of Muhammad Siddique, armed with a K.K., Ageel, son of Bakhshal, armed with a pistol, all by caste Mashoori and residents of Old Jatoi, Khair Muhammad, son of Haji Khan Koreejo [applicant], armed with a K.K., resident of village Sehra, Taluka Moro, along with three unidentified persons, armed with pistols, who can be identified upon sight (if seen). It is alleged that accused Gulzar instigated the attack by declaring that since the complainant and his companions were unwilling to hand over the disputed land, they would not be spared and would be murdered. Thereafter, Gulzar fired straight at Ali Gul with his rifle, striking him on the upper chest near the nipple. Khair Muhammad Korejo fired his K.K. at Ali Gul, inflicting a gunshot wound to the side of his neck. Arbab Ali fired with his K.K., hitting Ali Gul on the right side of his chest. Bakhshal also fired with his K.K., injuring Ali Gul's right leg. Ageel discharged his pistol, striking Ali Gul on the right elbow, while Dildar fired his gun, wounding Ali Gul's right hand. Meanwhile, Rajab fired with his K.K. at Ali Asghar, causing a gunshot injury to his back. As a result of the attack, both victims collapsed to the ground. The complainant and his companions sought cover behind nearby palm trees while the accused continued aerial firing before fleeing the scene. Thereafter, the complainant approached the victims and found Ali Gul and Ali Asghar lying injured on the ground. He immediately informed the police, arranged transportation, and proceeded towards Moro Hospital. However, Ali Gul succumbed to his injuries en route and passed away.

2. It is, inter alia, contended by the learned counsel for the applicant that the applicant is innocent and has falsely and maliciously been implicated in the present case at the behest of the police. The learned counsel submits that the applicant, being an advocate by profession, has been embroiled in this matter with mala fide intent, solely due to his professional association as legal counsel for the co-accused persons and their relatives. The learned counsel further contended that during the course of investigation, the applicant was found innocent by the police and was placed his name in Column No. 2 of the police report under Section 173 Cr.P.C. (Challan), as he had successfully invoked the plea of alibi through statements of local witnesses. However, despite such findings, the learned Magistrate did not concur with the police report. Moreover, it is asserted that the alleged motive behind the incident is not attributable to the applicant but pertains solely to co-accused Gulzar, arising out of a dispute over landed property. It is further argued that the complainant has a history of criminal litigation, with multiple cases registered against him at various police stations, and has longstanding enmities with different communities. Therefore, the learned counsel submits that the applicant has been maliciously implicated in the present case purely as a reprisal for his professional engagement as an advocate representing the co-accused.

3. The learned Additional Prosecutor General vehemently opposes the grant of such relief to the applicant, asserting that his role in the alleged offence cannot be disregarded at this stage. It is emphasised that the presence of the applicant at the time of the commission of the offence could not be conclusively determined through evidence led during the trial. Therefore, the prosecution maintains that the applicant's plea of alibi and claims of false implication require deeper scrutiny and cannot be a ground for exoneration at this stage.

4. Having heard the learned counsels and after perusing the record available before me, I proceed to determine the matter accordingly.

Scope of Section 190 Cr.P.C

1. It is of paramount importance to comprehensively expound upon the provisions enshrined in Section 190 Cr.P.C., as this section delineates the circumstances under which a Magistrate may assume cognisance of an offence. The said provision, being fundamental to the administration of criminal justice, confers upon the Magistrate the jurisdiction to take cognisance through three distinct modes:

190. Cognizance of offences by Magistrates. (1) All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence__

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion

Explanation:

(a) upon receiving a formal complaint containing facts which, on the face of it, constitute an offence;

(b) upon receipt of a police report submitted under Section 173 of the Cr.P.C., which is the culmination of an investigation conducted by law enforcement authorities; and

(c) upon obtaining information from any other credible source or upon the Magistrate's own personal knowledge of the commission of an offence. This provision ensures that the Magistrate is not merely a passive adjudicator but an active guardian of justice, empowered to initiate proceedings upon obtaining credible information from any source or even upon personal knowledge. Such discretion is crucial in circumstances where law enforcement agencies fail to act due to negligence, corruption, or external influence. Thus, this suo motu power serves as a check on law enforcement inertia, ensuring that crimes do not go unpunished merely due to procedural lapses or inaction by investigating agencies.

1. It is imperative to underscore that the jurisdiction of the Magistrate is not constrained by the conclusions drawn in the police report. The Magistrate is neither bound by nor obligated to adopt the opinion rendered by the investigating officer, as the latter's assessment is merely recommendatory in nature and does not hold binding force. (Javed Khan and others v. The State and others) Rather, the Magistrate is duty-bound to exercise independent judicial discretion, guided by sound reasoning and an objective appraisal of the material placed before him, in order to ascertain whether a prima facie case is made out against the accused.

2. It is held in Muhammad Ahmad v. The State as under:

"It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officer to creep into the evidence was not curbed them the same could lead to disastrous consequences. If an Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt."

This principle is firmly entrenched in established jurisprudence and has been consistently reaffirmed by superior courts. In Khalid Hussain v. Asif Iqbal, it was unequivocally held that a Magistrate is vested with wide-ranging powers to take cognisance of an offence, independent of the findings and recommendations contained in the police report, provided that there exist reasonable grounds to do so. This decision underscores the judicial independence conferred upon the Magistrate, ensuring that justice is not rendered subservient to the conclusions drawn by the investigating agency. Similarly, in Bilal Ahmed v. The State the court clarified that a Magistrate does not function as a mere rubber stamp of the police; rather, he possesses the inherent discretion to proceed with a case even in instances where the police recommend its closure.

1. The judicial mind of the Magistrate must, therefore, remain unfettered, and his adjudication must be predicated upon a fair and impartial assessment of all available material, rather than an unquestioning acceptance of the investigating officer's report. The same principle was reaffirmed in Naeem Akhtar v. Judicial Magistrate, wherein the court explicitly held that the opinion of the police carries no binding effect upon the courts, thereby reiterating the doctrine that judicial determinations must remain independent of executive influence. Furthermore, in Soomar v. Civil Judge and Judicial Magistrate, it was once again held that a Magistrate retains the authority to take cognisance of an offence even in cases where the investigating officer submits a negative report. The ruling reaffirmed the settled position that the Magistrate is not bound by the findings of the police and must exercise his judicial discretion in accordance with law, ensuring that the sanctity of the legal process is preserved.

2. This well-established judicial approach is in consonance with the maxim judex non potest injuriam sibi datum reprobate-a judge cannot disown an injury done to himself-signifying that a Magistrate cannot abdicate his judicial responsibility merely because an investigative agency has reached a particular conclusion. It is incumbent upon the Magistrate to ensure that justice prevails through an independent and reasoned application of legal principles, thereby upholding the rule of law.

Plea of Alibi: Scope and Evaluation

1. The plea of alibi serves as a defensive mechanism whereby an accused contends that he was at a location other than the scene of the alleged crime at the material time. However, it is well established in jurisprudence that such a plea does not constitute a primary defence but rather requires independent corroboration through unimpeachable and cogent evidence. In Abdul Rashid v. The State, it was explicitly held that an accused invoking the plea of alibi bears the onus of substantiating it with evidence of unquestionable credibility. The burden is stringent, as the plea must be established conclusively, eliminating any reasonable doubt as to its veracity (Faiz Bakhsh alias Faizu v. The State).

2. A weak plea of alibi, devoid of cogent and convincing corroboration, is liable to be discarded, as it does not satisfy the evidentiary threshold required for exoneration. This principle was further reiterated in Muhammad Ayub v. The State, wherein it was emphasised that the burden of proving an alibi rests squarely upon the accused, and such a plea must be substantiated by solid and reliable evidence rather than mere assertions. The doctrine of onus probandi-the burden of proof-applies in this context, making it incumbent upon the accused to produce irrefutable proof of his absence from the crime scene.

3. At the stage of cognisance, the assessment of an alibi is necessarily confined to a prima facie examination, as a detailed and comprehensive evaluation of such a defence falls within the exclusive domain of the trial court. The courts are duty-bound to assess whether the plea has any prima facie merit but cannot conduct an in-depth inquiry at the cognisance stage. Furthermore, in Kifayatullah v. The State, it was observed that when an accused attempts to fabricate an alibi through post facto documentation or other means, such a defence must be scrutinised with the highest degree of caution. This aligns with the maxim falsus in uno, falsus in omnibus-false in one thing, false in everything-highlighting the necessity of ensuring that a plea of alibi is not contrived or manufactured to mislead the court. The principle underscores the judiciary's obligation to prevent the misuse of alibi as a mere tool of exculpation, thereby ensuring that justice is not obstructed by spurious defences.

Application of the Law to the Present Case

1. In the instant case, the learned Magistrate has exercised his jurisdiction in a lawful and judicious manner under Section 190 of the Code of Criminal Procedure (Cr.P.C.). The contention that the applicant was placed in Column No. 2 of the police report does not ipso facto entitle him to exoneration, as the Magistrate retains the discretion to evaluate the material independently, uninfluenced by the conclusions drawn by the investigating officer. It is a well-settled principle that the Magistrate is not bound by the opinion of the police and must apply his own judicial reasoning in determining whether sufficient grounds exist for proceeding against an accused.

2025 P Cr. L J 1260

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon, J

Mujeeb Rehman and another---Applicants

Versus

Mst. Beebul and 2 others---Respondents

Criminal Revision Application Nos. S-33 and S-24 of 2024, decided on 20th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 491, 561-A---Penal Code (XLV of 1860), Ss. 353 & 337-A(ii)---Prevention of Gambling Ordinance(VII of 1978), S. 5---Inherent powers of High Court under S. 561-A, Cr.P.C.---Habeas corpus---Scope---Powers of Ex-officio Justice of Peace---Order passed by Ex-officio Justice of Peace for imposing a cost of Rs. 100,000/- upon the applicants for the purported detention of the private respondent---Applicants assailed order passed by Ex-officio Justice of Peace and sought quashing of the same---Entire case of the applicants depended upon the Roznamcha Diary dated 12.3.2024, which showed that the private respondent was arrested in Crime No. 88 of 2024 under Ss.353, 337-A(ii) P.P.C and under S.5 of Prevention of Gambling Ordinance, 1978, which was lodged against unknown person and the private respondent was shown arrested upon further statement of the Police Official/complainant recorded on 10.3.2024---Complainant did not disclose the names of any accused in the FIR and the applicants had based their case on the further statement of complainant to show the arrest of respondent on 12.3.2024 to avoid the punishment by keeping the private respondent in illegal detention---However, when the raid was conducted no such police entry was available or produced as per raid report; perhaps they managed the police record to justify the arrest of the respondent---However, the Ex-Officio Justice of Peace disbelieved their story and ordered imposition of cost of Rs. 100,000/- upon the applicants for detaining the respondent at Police Station and registration of criminal case against the applicants---If this was the position, no illegality was seen in the order---Primarily, the police Officials were unaware of the fundamental right of the citizens which was assured under Art.14 of the Constitution---If sufficient material was discernible from the facts and record of the case that an individual was kept in captivity unlawfully by a police official, the Courts had to come forward with a pragmatic approach for the protection of fundamental rights guaranteed under Arts. 9,10 & 14 of the Constitution and must not hesitate in awarding even cost/compensation to the victim---Such an amount was to be paid by none other than the delinquent police officials, who were detaining the persons illegally---Even, in appropriate cases, the Court may pass an order for the registration of criminal cases as well as initiation of departmental proceedings against the delinquent police officials---Even otherwise, a public functionary could not be let off to go scot-free when he was found to have infringed the right of an ordinary individual, guaranteed to him under the Constitution---Since the Ex-Officio Justice of Peace had already arrived at an irresistible conclusion that the detenu fell prey to police excess of unlawful detention, attributable to applicants, thus he deserved an award of compensation to be paid by the applicants/offending police officials as ordered by the Ex-Officio Justice of Peace---As such no interference on the part of the High Court was required at this stage---Appeal was dismissed, in circumstances.

Government of Sindh through The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283 and Rana (Khatoon) Bibi v. The State and others) Muhammad Aslam v. Azmat Bashir and others 2011 SCMR 1420 rel.

Ameenuddin Khaskheli for Applicants.

Respondents Nos. 1 and 2 present in person.

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

Date of hearing: 20th May, 2024.

Order

Adnan-ul-Karim Memon, J.---Applicants Mujeeb-ur-Rehman, Toto Khan and Zamir Ahmed have assailed the vires of the order dated 28.03.2024, passed by the learned Additional Sessions Judge/ Ex Officio Justice of Peace Moro in Crl. Misc. Application No. 151 of 2024, whereby a cost of Rs. 100,000/- was imposed upon the applicants for detaining respondent No.2 at Moro Police Station, besides registration of criminal case against the police officials of Police Station Moro, District Naushahro Feroze was ordered.

1. It is inter alia contended that the private respondent No.2 was indulged in many criminal cases as well as was arrested in Crime No. 88 of 2024 under sections 353, 337-A(ii) P.P.C and under section 5 of Gambling Act, such mashirnama of arrest was prepared and roznamcha entry No.9 was kept in the daily diary of Police Station Moro on 12.3.2024, however, this factum was ignored by the raid Commissioner vide his report dated 12-03-2024, who submitted his report to the learned Additional Sessions Judge Moro, who in return imposed a cost of Rs. 100,000/- upon the applicants for the purported detention of the private respondent No.2. Learned counsel further submitted that there was/is no mala fide intention on the part of police officials to keep the respondent No.2 in police lockup as he was required to be produced in Court within 24 hours under the law; therefore, they timely approached this Court by filing Criminal Revision Application No. 26 of 2024 and this Court vide order dated 15.04.2024 suspended the operation of the order dated 28.02.2024, however on the next date when the matter was fixed the applicants intimated to their counsel to put appearance on their behalf but due to his failure to appear on 06.05.2024, when the matter was fixed, this Court dismissed the Criminal Revision Application No. 26 of 2024 for non-prosecution vide order dated 06.05.2024. As per learned counsel, there is no provision under the Criminal Procedure Code to file a review application against the order dismissing the lis for non-prosecution; therefore the applicant Mujeeb-ur-Rehman filed the Revision Application No.33 of 2024 against the impugned order. He prayed for allowing both Revision Applications as prayed as there was no ill will on the part of the applicants to book the accused in false case.

2. Respondent No. 2 Abdul Majeed who is present along with his mother claims to be a detainee as per the raid Commissioner report submitted by the raid Commissioner; consequently, upon the intervention of learned Additional Sessions Judge/Justice of Peace Moro, who imposed costs of Rs. 100,000/- upon the applicants payable to the private respondent No.2 Abdul Majeed vide order dated 28-03-2024. An excerpt of the raid commissioner report dated 12-03-2024 is reproduced as under:-

"The undersigned after receipt of directions referred above conducted raid at Police Station Moro and found the detenue Abdul Majeed son of Pir Bux Hulio, thereafter made such entry in the Roznamcha book. I found that the accused was not nominated in any FIR as per Roznamcha book but after some time WPC Zamir Sahito produced one-mashirnama of detention of detainee in Crime No. 88/2024 under section(sic) Gambling Act but the detainee was not nominated in the said FIR. I asked the WPC to produce FIR book but he has not produced the FIR book though he was repeatedly asked for production of FIR book. The Deputy Officer ASI Abdul Majeed Dahar was present as Duty Officer, I enquired from for SHO Police Station Moror, who asked that the SHO has proceeded to ATC Court Naushahro Feroze. Thereafter accused was released from the police locked with direction to appear before the Honourable District and Sessions Judge, Naushahro Feroze on 13-03-2024 at 8:30 am. Direction in the roznamcha was also given by the undersigned to SHO to appear before the Honourable District and Sessions Judge, Naushahro Feroze on 13-03-2024 along with relevant record. (Statement of detainee and Khudmuchalka are submitted herewith)"

1. The applicants being aggrieved by and dissatisfied with the order dated 28-03-2024 filed the Criminal Revision Application No. 26 of 2024 on the ground that the private respondent was arrested in Crime No. 88/2024 of PS Moro and such mashirnama dated 12-03-2024 was prepared. As per applicants, respondent No. 2 was/is a criminal type person and was/is involved in several criminal cases in District Naushahro Feroze and is creating trouble for public at large. Upon perusal of the Crime No. 88 of 2024 of PS Moro, which explicitly shows that the name of the private respondent No.2 was not mentioned in the FIR and upon the further statement of ASI of that Crime the name of the private respondent No.2 was disclosed who later-on arrested and detained in police Lockup up Moro when the Raid Commissioner arrived at Police Station Moro, he found that the private respondent No.2 in alleged detention and was not nominated in any FIR as per Roznamacha book, but after some time WPC Zamir Ahmed produced one mashirnama of detention of the detainee in Crime No. 88 of 2024 under section 4 of the Gambling Act, however Raid Commissioner opined adversely against the police officials with certain reasoning. These all factums needs to be inquired by the SSP Naushahro Feroze on administrative side.

2. The entire case of the applicants depends upon the Roznamcha Diary dated 12.3.2024, which shows that the private respondent was arrested in in Crime No. 88 of 2024 under sections 353, 337-A(ii) P.P.C and under section 5 of Gambling Act, which was lodged against unknown person and the private respondent was shown arrested upon further statement of the ASI Abdul Hameed of PS Moro recorded on 10.3.2024, whereas he did not disclose the names of any accused in the FIR and the applicants have based their case on the further statement of ASI to show the arrest of respondent-Abdul Majeed on 12.3.2024 to avoid the punishment by keeping the private respondent in illegal detention, however when the raid was conducted no such policy entry was available or produced as per raid report, perhaps they managed the police record to justify the arrest of the respondent-Abdul Majeed. However the learned Additional Sessions Judge/ Ex Officio Justice of Peace Moro disbelieved their story and ordered imposition of cost of Rs. 100,000/- upon the applicants for detaining the respondent No.2 at Moro Police Station and registration of criminal case against the applicants. If this is the position, I do not see any illegality in the Order.

3. Touching on the core issues, primarily the police officials are unaware of the fundamental rights of the citizens which is assured under Article 14 of the Constitution which for reference sake is being mentioned hereunder:-

"14. Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence."

1. On the issue of fundamental rights of citizen, basically, the dignity of an individual, by the text of Article 14 of the Constitution, is secured and as a necessary consequence, every organ of the State is obliged to respect it. The Constitution is the most sacred legal document of a country and rights guaranteed to its subjects cannot be permitted to be encroached by the public functionaries/executives. The dogmatic approach of paying no respect to the rights of marginalized stratum is paving the way to retribution and resentment, often forcing even a noble soul to opt for a criminal life. The dignity of a man is mutilated, when he is publicly or privately humiliated, degraded, and ridiculed, more importantly due to his poverty and helplessness. Similarly, the dignity of an individual is traumatized when he is deprived of his liberty in violation of express provisions of law by a police officer. The protection of fundamental rights is not only the responsibility of the judiciary but also the obligation of public functionaries and executives as can be extracted from Article 5(2) of the Constitution.

2. To be precise, it can inexorably be concluded from Article 14 of the Constitution that insult, humiliation, and torture suffered by an individual due to his unlawful detention by police is not ignorable and to cater to such menace the Courts must come forward with a pragmatic approach.

3. In recent years, police work has taken a nosedive, mainly on account of non-adherence to Police Rules, 1934. According to Chapter-XX Rule 5 of Police Rules, 1934 every police station is essentially required to be inspected twice a year by a gazetted officer and at least once by the Superintendent of District. The details of such inspections are to be mentioned in Registrar No.XIII maintained under 22.64 of Police Rules, 1934. Unfortunately, even the mandatory requirement of police station' inspection has become obsolete. The reason behind these inspections is to ensure the smooth working of the police and to make sure that all affairs in police stations are carried out in the manner prescribed by law.

4. In the wake of the above discussion, the question of foremost importance arises what are the parameters within which the fate of a petition under Section 491 Cr.P.C. is to be decided, and how a victim of unlawful detention is to be consoled? While deciding the fate of a habeas petition, the High Court has to carefully scan the record to ascertain that the victim is deprived of his liberty under law or otherwise. To achieve this objective, the Court can examine the facts of the case, information forming the basis of detention and the counter-defense put forth against such a plea. The powers of the Court exercisable in the matters arising out of Section 491 Cr.P.C are highlighted by the Supreme Court in case reported as Government of Sindh through The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others (1994 SCMR 1283) and on account of its relevancy with the subject is being mentioned hereunder;

"The High Court is competent to examine and satisfy itself that the detenu is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reasons, facts, and causes leading to the detention."

1. If sufficient material is discernible from the facts and record of the case that an individual is kept in captivity unlawfully by a police official, the Courts have to come forward with a pragmatic approach for the protection of fundamental rights guaranteed under Articles 9, 10 and 14 of the Constitution and must not hesitate in awarding even cost/compensation to the victim. Needless to mention here such an amount is to be paid by none other than the delinquent police officials, who are detaining the persons illegally. Even, in appropriate cases, the Court may pass an order for the registration of criminal cases as well as initiation of departmental proceedings against the delinquent police officials. Even otherwise, how a public functionary can be let off to go scot-free when he is found to have infringed the right of an ordinary individual, guaranteed to him under the Constitution. I am afraid to observe that such an approach would render the provisions embodied in Articles 9, 10 and 14 of the Constitution as a nullity. The Courts are saviors of the fundamental rights granted to the subjects of a State and must guard them enviously.

2. This Court is not oblivious of the fact that countless police personnel have laid their lives while fighting against the miscreants, in an endeavor to uphold the law and order in the country, thus we must acknowledge their sacrifices by paying them respect. At the same time, it is noticed that cases of police excess are on the rise, and so is the horror of usurping the liberties of individuals through the menace of unlawful detention. Such a trend of police excess is required to be chained to guard the rights of citizens guaranteed under Articles 9, 10 and 14 of the Constitution. This objective can best be achieved by awarding compensation to the victims to be paid by the delinquent police officials. Such compensation on the one hand is destined to set right the police officials tending to act beyond prescribed spheres of law and on the other hand, is aimed at restoring the dignity of victims, protecting their fundamental rights, and restoring confidence in the legal system. A peep through the judicial archives reveals that even in the past, the Courts in our country have been awarding compensation to the sufferers. In this respect, reference can be made to the case of Rana (Khatoon Bibi v. The State, etc.) Muhammad Aslam v. Azmat Bashir and others (2011 SCMR 1420).

2025 P Cr. L J 1272

[Sindh (Hyderabad Bench)]

Before Arshad Hussain Khan and Sana Akram Minhas, JJ

Ali Raza---Petitioner

Versus

Province of Sindh through Home Secretary and 6 others---Respondents

Constitution Petition No. D-1520 of 2023, decided on 24th September, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 8(2) & 3(2) & 3(3)---Criminal Procedure Code (V of 1898), S. 265-H(1)---Constitution of Pakistan, Art.10-A---Restoration of possession of disputed land---Failure of the court to convict and identify the person in the order from whom possession was to be recovered---Effect---Inconsistency in findings of court---Non-impleadment of petitioner being in possession of a portion of the disputed property---Effect---Petitioner being owner and in possession of portion of disputed land challenged the order only to the extent of restoration of possession to the complainant/respondent---Validity---Order was riddled with inconsistencies and exemplified a perverse application of law---On one hand it concluded that the accused persons (from whom possession was sought in the complaint) were not in possession of the disputed land and acquitted them and on the other hand the complainant was held entitled to regain possession of the disputed land under S. 8(2) of the Illegal Dispossession Act, 2005 (Act) and direction was given to restore the possession without specifying or identifying the individual from whom the possession was to be recovered---Order was vague and lacked specificity as it did not identify that who illegally possessed the disputed land or from whom it should be restored to the complainant---Under S.8 read with Ss.3(2) & 3(3) of the Act the court could only order the restoration of immovable property upon conviction of the accused, however, court had acquitted both the accused and simultaneously ordered the restoration of possession of the disputed land to the complainant---Conviction was a pre-requisite for ordering the restoration of possession under S. 8 of the Act---Order violated the fundamental principle of natural justice and Art. 10-A of the Constitution by condemning the unidentified current possessor of the disputed land without granting him an opportunity to be heard---By ordering the restoration of possession without identifying or considering the current possessor's claim or perspective, the order effectively denied the fundamental right to a fair hearing, and failure to provide the petitioner or any other party in possession, the chance to present their case undermined the fairness and legality of the judicial process---Any adverse order issued or action taken by any forum or authority that breached the principles of fair trial and due process affecting valuable rights would be considered invalid and without legal effect---Constitutional petition was allowed, in circumstances.

Muhammad Sachal Awan for Petitioner.

Syed Tariq Ahmed Shah for Respondent No. 6.

Rafique Ahmed Dahri for Official Respondents.

Date of hearing: 3rd September, 2024.

Order

Sana Akram Minhas, J.---The Petitioner, who was not a party in the proceedings below, is aggrieved by and has questioned the legality of an order issued by the Additional Sessions Judge, Hala on 30.9.2023 ("Impugned Order"). While the Petitioner does not contest the Impugned Order as a whole, his objection is specifically directed at the final paragraph No. 16, which orders the restoration of possession of disputed agricultural land situated in District Matiari, collectively measuring about 73-01 acres ("Disputed Land") to the Respondent No.6 ("Complainant").

1. The Impugned Order arises from an Illegal Dispossession Complaint No.41/2019 dated 20.11.2019 (Mumtaz Ali v. Bachal Shah and others) ("Complaint"), instituted under the Illegal Dispossession Act, 2005 ("IDA 2005") by the Complainant against two individuals as the accused viz. Bachal Shah and Asghar Ali Shah, who are real brothers ("Accused Brothers"). The Impugned Order, while acquitting the Accused Brothers under Section 265-H(1) of the Criminal Procedure Code, 1898 ("Cr.P.C"), simultaneously directs the relevant authorities to restore possession of the Disputed Land to the Complainant. The Accused Brothers, however, are not parties to the present Petition.

2. The Petitioner, claiming to be a co-owner of the Disputed Land and a cousin of the Complainant, asserts that he currently possesses a portion of it.

3. Following the institution of the instant Petition, this Court issued an interim order on 31.1.2024, suspending the operation of the Impugned Order.

Underlying Facts

1. The facts underlying this case are that the Complainant filed a Complaint dated 20.11.2019 under IDA 2005, against the Accused Brothers. In the Complaint, the Complainant asserted that he is the owner of the Disputed Land comprising of Survey Nos. 154, 155 and 159 (measuring 22-21 acres) as well as Survey Nos. 151, 156, 160, 161, 162, 163 and 169 (measuring 50-20 acres), situated in Deh Fatehpur, Taluka Saeedabad, District Matiari (collectively measuring about 73-01 acres). He claimed to have been in possession of the aforesaid land, with the revenue record reflecting his ownership. The Complainant further alleged that the Accused Brothers, being influential individuals in the area, forcibly dispossessed him and unlawfully occupied his land i.e. Disputed Land on 30.10.2019. Despite his efforts to reclaim possession, through complaints and applications to local administration, no action was taken. As a result, the Complainant ultimately filed the aforesaid Complaint in Court.

2. The Trial Court supplied documents to the Accused Brothers in terms of Section 265-C Cr.P.C. Charge was framed against them by the Court on 7.3.2020 which was denied by the Accused Brothers and who claimed trial in terms of Section 265-E Cr.P.C. The prosecution examined the Complainant and his two witnesses, after which Complainant closed his side of evidence. The Trial Court then recorded statements of the Accused Brothers under Section 342 Cr.P.C, during which they denied the prosecution evidence. However, the Accused Brothers chose not to testify on oath under Section 340(2) Cr.P.C and did not produce any defence witness.

Inquiry report and interim relief of possession

1. An application under Section 7 of IDA 2005, was filed by the Complainant, seeking interim relief of possession during the pendency of the trial. In response to the Trial Court's order dated 10.12.2019, an on-the-spot inquiry was conducted by the Mukhtiarkar, who submitted a Compliance Report on the same date. The Mukhtiarkar's report indicated that the Petitioner was in possession of a portion of the Disputed Land, and that the land in question comprised a shared area Based on these findings, the Trial Court, in its order dated 14.4 2020, dismissed the Section 7 application for interim possession.

Inspection by Commissioner

1. By Order dated 18.4.2020, the Trial Court appointed the Civil Judge and Judicial Magistrate, Hala as Commissioner in the Complaint. The latter in its report dated 30.5.2020 notes that at the time of inspection, the Petitioner was found to be present on Survey No 155, who stated that he was residing inside the compound wall with his family.

Findings in Impugned Order

1. Significantly, paragraphs 6 and 9 of the Impugned Order note that the Complainant's Counsel favoured the restoration of possession of Disputed Land over pursuing the conviction of the Accused Brothers. The Accused's Counsel raised no objection, asserting that the Accused Brothers had neither dispossessed the Complainant nor had any concern with the Disputed Land. These statements were signed and acknowledged by both parties.

2. The Trial Court in its Impugned Order framed the following two points for determination

"1. Whether the present accused persons along with 9/10 other unknown persons, all being duly armed made heavy firing at complainant and others and thereafter dispossessed him from his Otaq and agricultural land deh Fatehpur Talka Saeedabad District Matiari as alleged by him?

1. What should judgment be?"

2. The Impugned Order acquitted the Accused Brothers but in its findings on Point No.2 (in paragraphs 14 and 15), the Trial Court observed that: r

14 ............................,....

Point No.1 is, therefore, answered as Doubtful

Point No. 2

15. Consequently, for finding on point No.1 aupra and law applicable thereto I feel no hesitation to acquit present accused named above of charge in terms of section 265-H(i) Cr.P.C by extending benefit of doubt. Present accused are present on bail, their bail bonds stand cancelled and sureties are discharged.

1. It is worth observing that under the attending circumstances SHO and Mukhtiarkar Revenue concerned are directed to restore possession of complainant Mumtaz All Gahot's land to him mentioned in complaint as per Revenue Record within a week as per law without fail under compliance report"

Opinion of Court

1. The Impugned Order is riddled with inconsistencies and exemplifies a perverse application of the law amongst others. These are:

i) On one hand, it concludes that the Accused Brothers (from whom possession was sought in the Complaint), were not in possession of the Disputed Land and acquits them. On the other hand, the Impugned Order rules that the Complainant is entitled to regain possession of the Disputed Land under Section 8(2) of IDA 2005 and directs the restoration of possession without specifying or identifying the individual from whom the possession is now to be recovered. The Impugned Order is vague and lacks specificity. It fails to identify who currently illegally possesses the Disputed Land or from whom it should be restored to the Complainant. The Trial Court's ruling only declares the Complainant's entitlement to the Disputed Land without issuing any concrete directions for restoration of possession from any accused or any individual claiming through them.

ii) The Impugned Order references a submission of the Complainant's Counsel, as contained in paragraph 5 of the High Court's order dated 17.11.2022 (passed in Crim. Revision App. No.S-218/2021 - Syed Bachal Shah Lakyari and another v. Mumtaz Ali and others), which stated that the Petitioner had been put in possession by the Accused Brothers. This submission has subsequently been used by the Impugned Order to justify the application of Section 8 of IDA 2005 (which section allows a Trial Court to order the accused, or anyone deriving possession through them, to restore possession of the property to the owner or occupant). This reasoning is perverse and untenable:

(a) Firstly, for the Impugned Order to assert that the Petitioner's possession was obtained through the Accused Brothers, it would require a finding of guilt against them. Since the Impugned Order acquitted the Accused Brothers, it cannot simultaneously hold the Petitioner responsible for possessing the land through them.

(b) Secondly, this was a mere allegation of the Complainant recorded in the High Court's order and was not its finding.

(c) Thirdly, the Impugned Order ignores paragraph 4 of the same High Court order which records the submissions of the advocates for Accused Brothers and the Petitioner that they are co-sharers and in possession of the Disputed Land.

iii) The Impugned Order (in paragraph 11) observes that no action has been taken by the Complainant against the Petitioner, despite the latter having been found to be in possession. Despite this, the Impugned Order directs that possession of Disputed Land be restored to the Complainant (which possession as per the Petitioner is to recovered from the Petitioner despite the latter not being a party in the proceedings and nor having been specifically identified in the Impugned Order).

iv) On being queried, the Complainant's Counsel informed this Court that no Criminal Acquittal Appeal has been filed by the Complainant to challenge the acquittal of the Accused Brothers under the Impugned Order. Despite this, the Complainant in his Counter-Affidavit presented on 20.1.2024 to the main Petition (specifically in the unnumbered penultimate paragraph), persists in alleging collusion between the Accused Brothers and the Petitioner. These accusations, made without any further legal action by the Complainant against them, appear to lack substance and credibility. Given that the Complainant has not contested the acquittal of the Accused Brothers, it is inconsistent to accuse them of placing the Petitioner in possession of the Disputed Land. Similarly, it is unjust and unfair to hold the Petitioner responsible for obtaining possession through the Accused Brothers in the Petitioner's absence.

2025 P Cr. L J 1313

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Zulfiqar Ali Sangi, JJ

The State thorugh Chairman NAB---Petitioners

Versus

Muneer Ahmed Sanghroo and another---Respondents

Constitution Petitions Nos. D-1296, D-1297, D-1298 and D-1299 of 2023, decided on 19th November, 2024.

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

----S. 497(5)---National Accountability Ordinance (XVIII of 1999), S. 9(a)(iii)(iv)(xii)---Constitution of Pakistan, Art.199---Constitutional petition---Corruption and corrupt practices---Petition for cancellation of bail, dismissal of---Allegations against the respondents were that they caused loss of huge amount to the government exchequer due to their negligence---At this stage, there was lack of evidence to demonstrate the acquisition of any monetary benefits by the accused or the party allegedly benefitting from the misuse of authority---As such, the case against the accused/respondents required further enquiry---Despite the serious nature of the charges, it was undisputed that the accused had complied with the conditions of their bail, and were attending every Court hearing without misuse of the concession granted to them---Mere gravity of the offence does not, in itself, justify the deprivation of personal liberty, particularly for an indefinite period---Object of bail is to secure the appearance of an accused at his trial by a reasonable amount for bail, it is neither punitive nor preventive, and therefore, deprivation of liberty must be considered as punishment, unless it might be required to ensure the presence of the accused during trial--- Prosecution could not point out from the record as to whether the respondents had violated any of the conditions, which could become the basis for cancellation of bail granted to them---Petitions were dismissed, in circumstances.

Shahid Arshad v. Muhammad Naqvi Butt 1976 SCMR 360 and Samiullah v. Laiq Zada 2020 SCMR 1115 rel.

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

----Ss. 497 & 498---Bail---Scope---Every accused will be presumed to be the blue-eyed boy of the law until and unless he may be found guilty of the alleged charge---Law cannot be stretched in favour of the prosecution, particularly at the bail stage---Mere huge quantity or gravity of the offence may not disentitle the applicant from concession of bail as bail cannot be withheld as an advanced punishment and applicant cannot be kept behind bars for an indefinite period.

Wajid Ali v. The State and another 2017 SCMR 116 rel.

Mujeeb-ur-Rehman Soomro, ADPGA and Bahawaluddin Shaikh, Special Prosecutor for NAB/State.

Zubair Ahmed Rajput and Javed Ahmed Soomro, Advocates for the private Respondents/accused.

Date of hearing: 19th November, 2024.

Order

Zulfiqar Ali Sangi, J.---Through these petitions, the petitioner/Chairman National Accountability Bureau has assailed the impugned orders dated 10.07.2023 passed by learned Accountability Court-III, Sukkur in Reference No. 19 of 2020 (Re- The State v. Rafiq Ahmed Rajper and others), whereby the pre-arrest bail applications filed by the private respondents/accused have been allowed and the interim pre-arrest bail was confirmed.

1. The allegation against private respondents/accused Muneer Ahmed Sanghroo, Khalid Hussain Bughio, Gul Muhammad Soomro and Manthar Ali Noonari is that they being the incharge of PRC Badeh, PRC Wagan Road-II, PRC Rehmatpur and WPC Naudero respectively, were entrusted with the Government Wheat stocks and they were responsible for safety of the stocks, whereas, as per Para 28 of Wheat Policy, 1984, they were responsible for issuing weekly inspection Report in Form S-I to the District Food Controller /Rationing Controller showing the quantity and condition of the stocks, but they failed to issue such reports. On physical verification of Wheat stocks in PRC Badeh, PRC Wagan Road-II, PRC Rehmatpur and WPC Naudero there was shortage of 70022 PP bags and 7277 Jute bags, 7255 PP bags, 17981 PP bags and 6777 PP bags respectively. The individual liability of the private respondent Muneer Ahmed Sanghroo is Rs. 122,401,907/-, Khalid Hussain Bughio is Rs. 10,463,208/-, Gul Muhammad Soomro is Rs. 19,673,139/- and Manthar Ali Noonari is Rs.9,773,833/-, hence the private respondents/accused have committed the offence of corruption and corrupt practices as defined in Section 9(a)(iii), (iv) and (xii) and Item-5 of Schedule which is punishable under Section 10 of the National Accountability Ordinance, 1999.

2. After usual investigation, the Reference was filed before the concerned Accountability Court, Sukkur. The private respondents/accused filed their pre-arrest bail applications before the trial Court and in the first instance, they were admitted to interim pre-arrest bail subsequently the same were confirmed on same terms and conditions vide separate orders dated 10.07.2023, giving rise to filing of instant Constitutional Petitions for cancellation of bail.

3. It is contended by learned Counsel for the petitioner that the learned trial Court while granting pre-arrest bail to the private respondents/accused has not considered the material available on record, as the allegations mentioned in the Reference are very serious in nature, because the respondents/accused being responsible for safety of the Wheat stocks entrusted to them did not issue S-I report to the District Food Controller/Rationing Controller and on physical verification, there was found a huge shortage of Wheat bags at their respective Centers; that the offence committed by the private respondents/accused is against the society and a heavy financial loss has been caused to the government exchequer, that the grant of pre-arrest bail is an extra ordinary concession, which is only to provide safety to the innocent persons. He lastly, prayed that the pre-arrest bail granted to the respondents/accused may be cancelled.

4. Learned counsel for the private respondents opposed the instant Constitutional Petitions and prayed for its dismissal by contending that the learned trial Court while considering the material available on record has granted pre-arrest bail to the respondents/accused; that the learned trial Court while granting bail to the private respondents/accused has discussed each aspect of the case and has committed no illegality.

5. Heard learned counsel for the respective parties and perused the material available on record with their able assistance.

6. The allegations against the accused/respondents are that they were entrusted with the responsibility of safeguarding the Government's wheat stocks at their designated center. Under the Wheat Policy of 1984, vide Paragraph 28, they were obligated to submit a weekly inspection report in Form S-1 to the District Food Controller/Rationing Controller, detailing both the quantity and condition of the stock. However, it is alleged that they failed to issue these reports as required. Consequently, the respondents are charged with the offence of corruption and corrupt practices, as defined under Section 9(a)(iii), (iv), and (xi) and item No.5 Schedule which is punishable under Section 10 of National Accountability Ordinance (NAO) 1999. It is the responsibility of the prosecution to substantiate the allegations of corruption and misuse of authority through credible and substantial evidence. At this stage, there is a lack of evidence to demonstrate the acquisition of any monetary benefits by the accused or the party allegedly benefitting from the misuse of authority. As such, the case against the accused/respondents requires further enquiry. Despite the serious nature of the charges, it is undisputed that the accused have complied with the conditions of their bail, attending every Court hearing without misuse of the concession granted to them. The mere gravity of the offence does not, in itself, justify the deprivation of personal liberty, particularly for an indefinite period. The object of bail is to secure the appearance of an accused at his trial by a reasonable amount of bail, it is neither punitive nor preventive, and therefore, deprivation of liberty must be considered as punishment, unless it may be required to ensure the presence of the accused during trial. The Punishment begins after conviction and not before it, therefore, if a person even is wrongly released on bail then such wrong can be repaired after the conclusion of the trial (if he is found guilty after trial) by putting him again in jail but the incarceration wrongly caused to or faced by an accused during the trial and after the conclusion of the trial, if he is found innocent then the moments/days spent by him under incarceration cannot be repaired. Every accused will be presumed to be the blue-eyed boy of the law until and unless he may be found guilty of the alleged charge and the law cannot be stretched upon in favour of the prosecution, particularly at the bail stage. A mere huge quantity or gravity of the offence may not disentitle the applicant from concession of bail as bail cannot be withheld as an advanced punishment and he could not be kept behind bars for an indefinite period ás was held by the Supreme Court of Pakistan in the case of Wajid Ali v. The State and another (2017 SCMR 116).

7. It is now established without any hesitation that considerations for the grant of bail and cancellation whereof are entirely on different footings. Generally speaking, the Courts are reluctant to interfere in the order of grant of bail and even in cases where it is apparently found that the bail granting order is not sustainable in the eyes of the law, the Courts restrain to interfere in such matters if it is found that there was nothing to show that the accused has misused the concession of bail. Reliance is placed on the case of Shahid Arshad v. Muhammad Naqi Butt (1976 SCMR 360). The Supreme Court of Pakistan in the case of Samiullah v. Laiq Zada (2020 SCMR 1115), which was further followed in Criminal Petitions Nos. 1459/2020, 1523/2020, 970 to 976/2021 and Criminal Petition No. 1145-L of 2020, held that for the purpose of cancellation of bail, the following considerations are to be satisfied:-

i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii) That the accused has misused the concession of bail in any manner

iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.

iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v) That the accused has attempted to interfere with the smooth course of investigation.

vi) That accused misused his liberty while indulging into similar offence.

2025 P Cr. L J 1320

[Sindh (Larkana Bench)]

Before Khalid Hussain Shahani, J

Aijaz Mehmood Malik and another---Applicants

Versus

The State and 3 others---Respondents

Cr. Misc. Application No. S-40 of 2025, decided on 10th March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 561-A---Gas (Theft Control and Recovery) Act (XI of 2016), S. 23---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Order passed by Ex-officio Justice of Peace for the registration of FIR after recording the statement of complainant---Petitioners assailed order passed by Ex-officio Justice of Peace and sought quashing of the same---It was evident that the applicants, being officials of Gas Utility Company ('SSGC'), conducted a raid at the residence of Respondent No.4.---Such act aggrieved Respondent No.4, prompting him to seek legal recourse, initially by approaching the concerned SHO and subsequently by filing an application before the Ex-Officio Justice of Peace---Ex-Officio Justice of Peace, though called reports from the applicants, but apparently it seemed that the assertions made therein were overlooked---In Para No.3 of the parawise reply/comments, it was asserted that raid was conducted on 18-12-2024 by SSGC officials along with lady searcher in pursuance of S.23 of Gas (Theft Control and Recovery) Act, 2016, through raid letter duly received at police station---However, it was incumbent upon the Justice of Peace to have a look, whether the information so supplied by the Respondent No.4 constituted a cognizable offence or otherwise, which had been ignored, for the obvious reason that allegation leveled in the application was to the extent that the applicants being SSGC officials transgressing their authorities conducted raid at the house of Respondent No.4---Plea taken by the applicants was that their act was strictly in accordance with the law, after seeking due permission from the higher authorities of the SSGC---Besides, their act was covered under S.23 of Gas (Theft Control and Recovery) Act, 2016---Applicants being SSGC officials are/were authorized to search the premises not only in the case of theft, but suspected theft too---Sufficient material was placed in that respect by the applicants including letter dated 21-11-2024 to AGM Regional Office SSGC, seeking permission for conducting raid at the pointed place---Besides, the SHO in his report negated the assertions made by the Respondent No.4 and submitted, after communicating information to the police station on 18.12.2024, in presence of two lady Police Officials, that the raid was conducted---Where the police inquiry negated the occurrence of an alleged incident, compelling law enforcement to register an FIR would be an exercise in futility---Judicial discretion must be exercised prudently to prevent the abuse of legal provisions and the registration of FIR under such circumstances, absent substantive evidence, would serve no lawful purpose---Bare reading of the impugned order showed that Ex-Officio Justice of Peace had been influenced from the situation wherein, nothing was taken into possession by the raiding team from pointed place, as no clamp was found and simply it was assumed that cognizable offence was made out---Such observations seemed to be based on assumptions and were not sustainable under the law, as Presiding Officer had failed to point out what cognizable offence(s) was made out for issuing directions to the SHO concerned to record statement of applicant and incorporate the same in S.154 Cr.P.C book---Upon careful scrutiny of the facts and circumstances presented by the applicants, it was evident that no cognizable offense had been established---Therefore, it was not mandatory for Courts to direct the police to register FIR when the allegations appeared to be mala fide or lacked substantive grounds---Judicial prudence demanded that before issuing such directives, the Court must ensure that the same are not granted in a routine or mechanical manner, as doing so could infringe upon the fundamental rights of individuals against whom such orders were passed---Impugned order, was set aside, in circumstances.

Habibullah G. Ghouri for Applicant.

Muhammad Afzal Jagirani for Respondent No. 4.

Nazir Ahmed Bhangwar, DPG for the State.

Date of hearing: 10th March, 2025.

Order

Khalid Hussain Shahani, J.---The applicants, Ajaz Mehmood Malik and Mushtaque Ahmed Shaikh, have invoked the inherent jurisdiction of this Court under Section 561-A Cr.P.C, seeking judicial review of the order dated 08.01.2025, passed by the learned Sessions Judge/Ex-Officio Justice of Peace, Kashmore alias Kandhkot, in Criminal Miscellaneous Application No.2078/2024. The impugned order, issued under Section 22-A and B Cr.P.C, directed the SHO concerned to record the statement of the applicant in accordance with the provisions of Section 154 Cr.P.C.

1. The stance taken by Respondent No.4 is that he hails from a Syed and pardanasheen family, maintains an esteemed reputation in society, and, as a consumer of SSGC, has been consistently paying the requisite monthly bills with no outstanding dues. However, on 18.12.2024 at about 01:00 p.m, the applicants, who are SSGC officials, allegedly misused their official authority by unlawfully entering his premises, accompanied by 15-20 unidentified individuals, including police officials, without obtaining a search warrant. The purported justification for this intrusion was a baseless allegation that Respondent No.4 had installed an engine/generator connected to the gas pipeline, though no such evidence was found. Furthermore, it is alleged that the applicants issued threats to Respondent No.4. Upon being denied relief by the concerned SHO regarding the registration of an FIR, Respondent No.4 proceeded to file an application under Sections 22-A and B Cr.P.C. before the learned Sessions Judge/Ex-Officio Justice of Peace, which resulted in the granting of the requested relief.

2. It is a well-settled principle of law that the jurisdiction conferred under Section 22-A Cr.P.C. serves to protect the rights of aggrieved individuals by facilitating access to legal remedies when law enforcement authorities fail to register a cognizable offense. However, such jurisdiction must be exercised with due diligence and judicial prudence, particularly in cases where the allegations are speculative, lack substantive evidentiary support, or appear to be influenced by ulterior motives.

3. Learned counsel for the applicant argued that the learned Ex-Officio Justice of Peace failed to properly assess the evidentiary and circumstantial aspects of the case and erroneously issued the impugned order without due application of judicial mind. He contended that the applicants, being officials of SSGC holding responsible positions, lawfully conducted a raid along with SSGC staff and police officials. However, following the unsuccessful outcome of the raid, Respondent No.4 demanded a line clearance certificate from the SSGC staff, and upon refusal, he filed the application under Sections 22-A and B Cr.P.C. Counsel further argued that the allegations levelled by Respondent No.4 were misconceived and lacked legal merit. He maintained that the learned Ex-Officio Justice of Peace, in violation of the principles of natural justice, passed the impugned order, which is a nullity in the eyes of law, as no cognizable offense was made out in the application. Furthermore, he emphasized that the applicants, in the lawful discharge of their official duties, conducted the raid in accordance with the law, in the presence of two female police officials.

4. Learned counsel for Respondent No.4 supported the impugned order, contending that the law does not empower SSGC officials to enter the premises of a private individual without obtaining a valid search warrant. Therefore, the applicants acted beyond their legal authority and in contravention of established legal principles.

5. Upon a thorough examination of the arguments presented by learned counsel for both parties, it is evident that the applicants, being officials of SSGC, conducted a raid at the residence of Respondent No.4. This act aggrieved Respondent No.4, prompting him to seek legal recourse, initially by approaching the concerned SHO and subsequently by filing an application before the Ex-Officio Justice of Peace.

6. Prior to examining the merits of the case, it is imperative to interpret the legislative intent underlying the relevant statutory provisions. Section 154 Cr.P.C. unequivocally mandates that the Officer In-charge of a police station is duty-bound to record information pertaining to a cognizable offense in writing, either personally or under their direction, and subsequently read the recorded statement to the informant. Such information, whether submitted in writing or reduced into written form, must be officially entered into a register as prescribed by the Provincial Government. The use of the term "shall" in this provision underscores the obligatory nature of registering an FIR in cases involving cognizable offenses, without subjecting the veracity of the information to preliminary scrutiny at this stage.

7. Under Section 22-A(6) Cr.P.C., the authority vested in the Ex-Officio Justice of Peace is discretionary, as evidenced by the use of the term "may", this legislative choice underscores the intent to allow the Justice of Peace to exercise judicial discretion in determining whether directions for the registration of an FIR should be issued, contingent upon the merits of the information provided. The functions conferred upon the Ex-Officio Justice of Peace under clauses (i), (ii), and (iii) of subsection (6) of Section 22-A Cr.P.C. are intended to facilitate the dispensation of justice in an expeditious manner; however, such powers are neither absolute nor unfettered. The Honorable Supreme Court of Pakistan, through various precedents, has emphasized that an Ex-Officio Justice of Peace must act with caution and diligence while exercising such jurisdiction. It is incumbent upon them to conduct a careful evaluation of the allegations to ensure that the rights of individuals against whom an FIR is sought to be registered are adequately protected. The fundamental principle of due process necessitates that the opposing party be granted an opportunity of hearing before any order is passed, thereby preventing the misuse of legal provisions.

8. The Learned Sessions Judge/Ex-Officio Justice of Peace, Kashmore alias Kandhkot, though called reports from the applicants, but apparently it seems that the assertions made therein were overlooked. In Para No.3 of the parawise reply/comments, it was asserted that raid was conducted on 18-12-2024 by SSGC officials along with lady searcher in pursuance of section 23 of Gas (Theft Control and Recovery) Act, 2016, through raid letter duly received at Police Station Ghauspur. Learned Ex-Officio Justice of Peace in the impugned order relied upon reported case (PLD 2007 SC 539), wherein it is held that, the only jurisdiction which could be exercised by Ex-Officio Justice of Peace under section 22-A(6) Cr.P.C was to examine whether the information disclosed by the applicants did or did not constitute a cognizable offence and if it did then to direct the concerned SHO to record an FIR without going into the veracity of information in question, and no more. Means thereby, it was incumbent upon the learned Justice of Peace to have a look, whether the information so supplied by the Respondent No.4 constitutes a cognizable offence or otherwise, which has been ignored, for the obvious reason that allegation levelled in the application was to the extent that the applicants being SSGC officials transgressing their authorities conducted raid at the house of Respondent No.4. As against, the plea taken by the applicants was that their act was strictly in accordance with the law, after seeking due permission from the higher authorities of the SSGC. Besides, their act was covered under section 23 of Gas (Theft Control and Recovery) Act, 2016. For ready reference such provision is reproduced hereunder:-

2025 P Cr. L J 1331

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Akbar Jatoi---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-07 of 2023, decided on 18th April, 2024.

Penal Code (XLV of 1860)---

----Ss. 395, 397, 337-A(i), 337-F(iii) & 337-H(2)------Appreciation of evidence---Dacoity, robbery or dacoity with attempt to cause death or grievous hurt, shajjah-i-khafifah, ghayr-jaifah-mutalahimah, rash or negligent act to endanger human life or personal safety of others---Jurisdiction of the Court---Scope---First Information Report was registered under the provisions of P.P.C, however, charge against accused was framed under Ss.17 (2) & 17 (3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and he was tried in consonance of the charge---On conclusion of trial, the accused was convicted and sentenced under the provisions of P.P.C, but before handing down the judgment, the Trial Court did not alter the charge---Besides, the sentence awarded to the accused also exceeded two years, therefore, the appeal would lie before Federal Shariat Court and not before the High Court---Since the "charge" was framed under Hudood Laws and accused was tried for the said "charges" namely, Hudood Laws, as such the "result" /"fate" of the trial would not change the jurisdiction of the Court, but it was the "charge", on basis of which the jurisdiction of the Court would be decided---Accordingly, the office was directed to send the appeal along with its record to the Federal Shariat Court through its Registrar---Order accordingly.

Ali Dino and another v. The State 2017 PCr.LJ 578 ref.

Juman and another v. The State PLD 2016 Sindh 191 rel.

Muhammad Afzal Jagirani for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Ahsan Ahmad Quraishi, amicus-curiae.

Date of hearing: 15th April, 2024.

Judgment

Muhammad Saleem Jessar, J.--- Through instant appeal, appellant Akbar son of Gaman alias Hazoor Bux Jatoi has impugned the judgment dated 24.12.2022 passed by learned Additional Sessions Judge-V, Shikarpur, vide Sessions Case No. 137 of 2022, Re; State v. Akbar Jatoi, arisen out of FIR No. 08 of 2021 registered with P.S Abad-Milani, for offences punishable under Sections 395, 397, 337-A (i), 337-F (iii) and 337-H (2) P.P.C. The trial Court framed charge agaisnt appellant under sections 17 (2) and 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979. However, after recording evidence as per the charge the learned trial Court convicted and sentences the appellant offense under Section 397 P.P.C and sentenced to undergo rigorous imprisonment for seven years.

1. This appeal was admitted for regular hearing on 27.02.2023, thereby notice was issued to learned Add. P.G., R&Ps were called and Paper Book was also directed to be prepared.

2. Before proceeding with the appeal, this Court vide Order dated 08.03.2024 called upon learned counsel for the appellant to satisfy the Court, as to jurisdiction of this Court, whether the appeal in hands would lie before this Court or before the Federal Shariat Court in view of the fact that the case/ FIR was registered for the offences under P.P.C. i.e. 395, 397, 337-A (i), 337-F (iii) and 337-H (2) P.P.C., while the "charge" was framed under Hudood Laws i.e. under Articles 17 (2) and 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, whereas appellant was convicted under provisions of P.P.C. Further, to assist the Court on this legal point Mr. Ahsan Ahmad Quraishi, Advocate was appointed as Amicus-Curiae.

3. Heard learned counsel for the appellant, learned D.P.G appearing for the State and learned Amicus-Curiae.

4. Learned counsel for the appellant re-iterates that the appeal would lie before this Court as the appellant has been convicted and sentenced under P.P.C. Mr. Ahsan Ahmad Quraishi, Advocate learned Amicus-Curiae is also of the opinion that since the FIR was registered and appellant was convicted under P.P.C, therefore, this Court is competent to entertain the appeal, hence it need not to be transferred to Federal Shariat Court.

5. Conversely, learned D.P.G. contended that the appeal would lie before Federal Shariat Court, as the charge was framed under Hudood Laws. In support of his argument, he relied upon case of Ali Dino and another v. The State reported in 2017 PCr.LJ 578.

6. No doubt the FIR was registered under the provisions of P.P.C, however, charge against appellant was framed under sections 17 (2) and 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, and he was tried in consonance of the charge. And on conclusion of trial, the appellant was convicted and sentenced under the provisions of P.P.C, but before handing down the judgment the learned trial Court did not alter the charge. Besides, the sentence awarded to the appellant also exceeds two years, therefore, in my view the appeal would lie before Federal Shariat Court and not before the High Court. I am fortified with the dicta laid down by this Court in case of Juman and another v. The State reported in PLD 2016 Sindh 191, wherein it was held that, since the "charge" was framed under Hudood Laws and appellants were tried for the said "charges" namely, Hudood Laws, as such the "result" / "fate" of the trial shall not change the jurisdiction of the Court, but it is the "charge", on basis of which the jurisdiction of the Court would be decided. It would be conducive and illustrative to reproduce the relevant paras from that judgment, which reads as under:

"From the perusal of record it appears that FIR was lodged under Hudood Ordinance and charge was also framed under the provisions of Hudood Ordinance. It is also admitted that sentences have been awarded under the P.P.C, but the question remains that as to whether is it the sentence that determines the forum, or, is it the charge that decide the forum? In our humble view, legality it is the 'charge' that determines the forum. There is no cavil with the legal proposition that on account of non-availability of evidence satisfying the standard of proof as required under section 7 of the Ordinance, always sentence is to be inflicted by mentioning a section of P.P.C. within the meaning of section 20 of the Ordinance. Mere passing of the sentence under 'Tazir' is not determinative of the forum, the view can find support from bare reading of section 20 of Ordinance, which is reproduced as under:--

"Punishment for harrabah liable to ta'zir---Whoever commits harrabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forums mentioned in section 7 is not available, or for which punishment of amputation or death may not be imposed or enforced under the Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code (Act XLV of 1860) for the offence of dacoity, robbery or extortion, as the case may be."

Needless to observe that as per the provisions of subsection (2) of section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 the sentence less than two years has been made appealable before the High Court. For ready reference, subsection (2) of section 24 of the Ordinance is reproduced:--

"2 (Provided further that an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by a Magistrate authorized under section 30 of the said Code and on appeal from an order under either of the said section 3 (or from an order under any provision of this Ordinance which impose a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court."

Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-

"203DD. Revisional and other jurisdiction of the Court. (1) The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."

In the of Muhammad Akbar v. State (2003 YLR 1339), the Honourable Federal Shariat Court has held as under:--

"After going through the Constitution, Hudood Laws and case-law, relied upon by the learned counsel in respect of the legal objection raised by the learned counsel for the appellant, we overruled the same and held that, in circumstances of a case where charge is framed against an accused under any provision pertaining to Hudood Laws, with or without any other section of P.P.C, and the trial Court comes to the conclusion that charge under the Hudood Laws could not be maintained for want of evidence or other reasons, and proceeds to convict him for any other offence under the provisions of P.P.C and acquit him from charge under Hudood Laws, the appeal against that judgment would lie to the Federal Shariat Court. This jurisdiction is conferred upon Federal Shariat Court by the Constitution as well as the relevant enactments in Hudood Laws that still hold the field and cannot be taken away by any judgment of any Court unless the relevant provisions referred to above are duly amended. In this connection, firstly we would like to refer to Chapter 3-A of the Constitution of Pakistan hereunder Federal Shariat Court exercises its jurisdiction. Article 203-DD and sub-Article 2(a) to Article 203-F clearly defines a portion of the powers conferred upon it ,by the Constitution."

In the case of Karamat Khan v. State (2002 PCr.LJ 1868), the Hon'ble Federal Shariat Court held as under:-

"By now, it is well-settled that if a Court not possessed of jurisdiction to try a case, wrongly assumes jurisdiction and exercises power not vested in it, appeal from its decision would lie in the same manner as an appeal would like from a decision made with jurisdiction."

In the case of Muhammad Juman v. State (2004 MLD 278), this Court held as under:-

"I have given due consideration, to the arguments and have gone through the relevant Articles of Constitution of 1973. It is admitted position that the case pertains to offence punishable under the offences of Property (Enforcement of Hudood) Ordinance, 1979 as such the provisions of Articles 203-DD and 203-G of Constitution of 1973 are attracted which are as under:-

"203-DD.Revisional and other jurisdiction of the Court-(1) The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court, and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail on his own bond pending the examination of the record."

Articles 203-G and 203-GG of Constitution of 1973 are also applicable in the case which read as under:--

203-G. Bar of jurisdiction----Save as provided in Article 203F, no Court of Tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.

203-GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court."

In the case of Moula Bux Gello v. State (2002 YLR 2956), (Karachi), it was observed as under:-

"Since offences under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 is also triable by the Sessions Court like Article 8 of the Prohibition Order, hence the rule laid down at serial No. (ii) above, shall stand attracted on all fours. Thus an appeal against an order of conviction or acquittal relating to offence under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 can only be preferred before the Federal Shariat Court which Court has the exclusive jurisdiction in such matters."

In the case of Muhamamd Safeer v. State (2004 PCr.LJ 899), the Honourable Federal Shariat Court held as under:-

2025 P Cr. L J 1341

[Sindh (Mirpurkhas Bench)]

Before Adnan-ul-Karim Memon, J

Sooran Singh alias Soorio---Appellant

Versus

The STate---Respondent

Crl. Bail Application No. S-127 of 2024, decided on 13th August, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail, grant of---Further inquiry---Accusation against the applicant was that due to a matrimonial dispute between the deceased and his wife, he recorded a video clip, making allegations against his wife to the extent that she had indulged in extra matrimonial affairs with the applicant thus, he had no option but to commit suicide which he did, therefore case against applicant was registered under Section 322, P.P.C based on such video clip---Section 322, P.P.C, qatl-bis-sabab is punishable with Diyat only---Accused could not be sent behind bars when charged with an offence under S.322, P.P.C because, even if he pleaded guilty at his trial and was convicted, he could only be imprisoned if he failed to pay the Diyat sum---Incarceration of accused would, therefore, amount to punishing him before conviction---Where the criminal liability of an accused of an offence is Diyat only, the offence does not fall within the prohibitory clause---Where an offence does not fall within the prohibitory clause, the acceptance of bail is the rule and rejection is an exception---Besides, the liability of the present applicant or charges leveled against him could only be determined by the trial Court after recording and evaluating the evidence---At the bail granting stage, the material available on record was to be sifted through to establish whether, on the face of the record, the accused person before the Court could be connected to the crime in question, hence no detailed inquiry was to be conducted by the Court---Thus, being so, the detention of the applicant pending trial could only be justified if the case falls within the scope of any of the exceptions---Nothing was on record of the present case that might attract any of the said exceptions and justify the denial of post-arrest bail to the applicant at present stage---Facts and circumstances of the case, made it a case of further inquiry---Bail application was allowed, in circumstances.

Muhammad Najeeb v. The State 2009 SCMR 448 and Shahzad Ahmed v. The State 2010 SCMR 1221 ref.

Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; Kazim Ali v. The State 1998 MLD 1535; Tariq Bashir and others v. The State PLD 1995 SC 34; Manzoor Hussain and others v. The State 2011 SCMR 902; Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Tanveer v. The State PLD 2017 SC 733 and Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 rel.

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

----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations recorded in bail orders are tentative and should not prejudice the case of either party at trial.

Shoukat Ali Rahimoon for Applicant.

Shahzado Saleem, A.P.G Sindh for the State along with I.O/SHO Mushtaque Ahmed of the case.

Date of hearing: 13th August, 2024.

Order

Adnan-ul-Karim Memon, J.---The Applicant Sooran Singh alias Soorio seeks his release on post-arrest bail in FIR No.09 of 2024 for the offense under section 322 P.P.C at Police Station Chelhar. His earlier bail plea was declined by the trial court vide order dated 20.06.2024 on the premise that the dying declaration of the deceased recorded in a video clip, fully implicates the applicant with the alleged offence.

1. In the present case the accusation against the applicant is that due to a matrimonial dispute between the deceased with his wife, he recorded a video clip, making allegations against his wife to the extent that she had indulged in extra matrimonial affairs with the applicant thus he had no option but to commit suicide which he did, thus case against the applicant was registered under section 322 P.P.C based on such video clip.

2. Learned counsel for the applicant/accused argued the case against the applicant/accused is false, fabricated, based on mala fide, and concocted. He added that when a complainant does not actively pursue the prosecution of the accused and supports the version of the applicant by filling affidavits, it can lead to the applicant being granted such benefit of the doubt. Primarily, this is because the legal system aims to balance the rights of the accused with the interests of justice. If the prosecution is not diligent, the court may decide that keeping the accused in custody is not justified. However, it's important to note that granting bail does not mean the accused is acquitted or that the charges are dropped and the trial has yet to begin. He emphasized that section 322 P.P.C carries with it, punishment of 'Diyat' only. No express provision of law existed to show that the punishment of 'Diyat' would attract the prohibitory clause of section 497 Cr.P.C. So far as the video clip of the deceased is concerned, he argued that the same piece of evidence is old and requires judicial scrutiny; and forensic authenticity, which factum is missing in this case, and on that basis the applicant cannot be kept behind the bars for indefinite period as a punishment without trial in a suicide case.

3. Learned Additional Prosecutor General assisted by the Investigating officer, opposed the grant of bail to the applicant; he next argued that filing affidavits of the complainant side, would not make a case for further inquiry and this tendency has been taken note of by the Supreme Court of Pakistan. If this is the stance of the prosecution, an important question arises in the present case, as to whether based on affidavits of some of the legal heirs of the deceased, concession of bail can be extended to the applicant/ accused. I am of the tentative view that at the stage of consideration of bail application, either anticipatory or regular bail such affidavit could not be taken into consideration. Learned counsel for the applicant has heavily relied upon the case of Muhammad Najeeb v. The State (2009 SCMR 448) and argued that the wife is the legal heirs of the deceased have pardoned the applicant/ accused and filed affidavits before this Court, then the case requires further inquiry into the guilt of the applicant/ accused. Therefore, the concession of bail can be acceded to in favor of the applicant. Be that as it may, before dealing with the merits of the respective contentions, it would be appropriate to refer to the guidelines given by the Supreme Court, while considering the application for grant of bail. The guidelines are that while deciding a bail application this Court has to consider the facts of the case narrated in the FIR, statements recorded under Section 161 Cr.P.C., other incriminating material against the accused, nature, and gravity of charge and pleas raised by the accused. In this regard, I am fortified by the decision of the Supreme Court rendered in the case of Shahzad Ahmed v. The State [2010 SCMR 1221]. Keeping in view the above principle, the learned counsel for the parties has been heard and the record has been perused.

4. Before going into any further discussion, it would be advantageous to reproduce Sections 321 and 322 of the Pakistan Penal Code herein under:

"321. Qatl-bis-Sabab.-- Whoever, without any intention to cause the death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit Qatl-bis-Sabab.

322. Punishment for Qatl-bis-Sabab.--Whoever commits Qatl-bis-sabab shall be liable to Diyat."

1. Admittedly, section 322, P.P.C. though non-bailable yet is not punishable with any period of imprisonment except the payment of Diyat. Analysis of section 321 P.P.C would show that this provision applies when a person (a) commits an unlawful act, (b) without any intention to cause the death of, or cause harm to any person, and (c) the said act becomes a cause for the death of another person. Mens rea is not the condition precedent to attract this section. The legislature has made actus reus culpable. The Pakistan Penal Code does not define "unlawful act", so it must have recourse to the dictionary meaning. According to Black's Law Dictionary, it connotes "conduct that is not authorized by law; a violation of a civil or criminal law" Section 321 P.P.C must be interpreted according to the principles discussed above. It makes a person legally accountable not only for engaging in an illegal act that results in the death of another person but also for failing to take measures within his power to prevent such an event from happening if he owes a duty of care. To succeed, the prosecution must establish a causal relationship between the accused's conduct (or omission) and the incident resulting in a person's death. In other words, it must demonstrate that the incident would not have happened but for the accused's actions. (This is also known as the "but for" test). Second, the prosecution must establish legal causation, which is closely connected to the notions of responsibility and culpability. Section 322 P.P.C, Qatl-bis-sabab is punishable with Diyat only. However, per Schedule II of the Code of Criminal Procedure, 1898, the offense is cognizable and non-bailable. This provision was introduced following the amendment of Chapter XVI of the Pakistan Penal Code (Of offenses affecting the human body) in 1990. The accused cannot be sent behind bars when charged with an offense under section 322 P.P.C because, even if he pleads guilty at his trial and is convicted, he can only be imprisoned if he fails to pay the Diyat sum. His incarceration would, therefore, amount to punishing him before conviction. In such a situation the observation of the Supreme Court in the case of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784):

"In addition to the above, it is to be noted that learned trial court vide order, dated 19th January 2004, summoned him and Dr. Sajid Hussain (petitioner No.2) being accused for the offence under section 319 P.P.C but surprisingly on 17th December 2004 on the basis of the same material, they were charged for Qatl-bis-sabab under section 322/34 P.P.C, which is a non-bailable offence as per schedule of Cr.P.C. It seems that the learned Judge could not decide whether it is a case under section 319 or 322 P.P.C. Be that as it may, in any case, they shall not be punished ultimately for death or life imprisonment as under section 322 P.P.C. The sentence is of Diyat; therefore, for this added reason as well, concession of bail cannot be denied to them under the law."

2025 P Cr. L J 1350

[Sindh]

Before Muhammad Saleem Jessar, J

Ashiq Ali and another---Appellants

Versus

The State and others---Respondents

Criminal Appeal No. S-421 of 2024 along with Criminal Appeal No. S-428 of 2024, decided on 12th August, 2024.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), Ss. 345(2) & 345(6)---Prevention of illegal possession of property---Appreciation of evidence---Compromise---Scope---Accused were charged for occupying the property of complainant illegally in his absence---Complainant filed applications under Ss. 345(2) & 345(6), Cr.P.C with the submission that possession of the disputed property had been restored to him, therefore, he with the core of his heart had forgiven the accused "AA" and he had no objection if the said accused was acquitted of the charge---Since, the complainant had entered into compromise with main co-accused "AA" and the possession of disputed property had also been restored to him; hence, the case of co-appellant was at par and conviction could not be maintained more particularly when on identical charge, co-accused had been acquitted by way of compromise; besides, possession of the disputed property had been restored to the complainant---Admittedly, complainant as well as appellant "AA" had amicably settled all their differences and agreed to pass rest of their lives in peace, tranquility and harmony---Non-compound- ability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---In present case, though the possession of the disputed property had been handed over/restored to the complainant yet he had entered into compromise with only appellant "AA" however, had not compromised with co-appellant---As far as, case of co-appellant was concerned, no different charge was framed against him nor any specific allegation regarding dispossessing the complainant from the particular property had been leveled against him---In such state of affairs, case of co-appellant could not be bifurcated or separated---Appeal against conviction of co-appellant was allowed accordingly.

Akhtar Hussain v. Station House Officer Sachal Karahi and 2 others 2020 PCr.LJ Note 20 ref.

Sanaullah Soomro for Appelant (in Criminal Appeal No. 421 of 2024).

Hakim Ali Shar for Appellant (in Criminal Appeal No. 428 of 2024).

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

Shahnawaz Khan for the Complainant.

Date of hearing: 12th August, 2024.

Order

Muhammad Saleem Jessar, J.---Through both these appeals, appellants Ashiq Ali and Muhammad Ramzan have assailed the judgment dated 31.05.2024 passed by learned IV-Additional Sessions Judge, Karachi (East) in Criminal Complaint No.20 of 2019 (Re: Muhammad Ashraf v. Muhammad Ramzan and another) whereby they have been convicted and sentenced to for the term of seven years R.I along with fine of Rs.100,000/- each, in default of which, to serve an imprisonment for four days more. Besides, they were directed to pay compensation of Rs.300,000/- each to complainant.

1. At the very outset, learned counsel for the complainant files applications under Sections 345(2) and 345(6) Cr.P.C duly supported by the Affidavit of the complainant as well as certain documents, taken on record. Office to assign proper numbers to the applications. Complainant Muhammad Ashraf having CNIC 42201-0692168-3 is present along with his counsel and submits that possession of the disputed property has been restored to him; therefore, he with core of his heart has forgiven the appellant (appellant Ashiq Ali in Criminal Appeal No.421 of 2024); hence, they have filed compromise applications jointly and does not want to prosecute the appellant anymore. Learned Counsel for complainant, however, under instructions records no objection if these applications are allowed and appellant is acquitted of the charge.

2. Learned Deputy P.G Sindh present in Court waives notice of the applications and while placing his reliance upon the case of Akhter Hussain v. Station House Officer Sachal Karahi and 02 others reported in 2020 PCr.LJ Note 20, records her no objection, if applications are granted.

3. Since the possession of land in dispute has been handed over to complainant; therefore, the complainant does not want to prosecute the appellant anymore; hence, he has entered into compromise with the appellant voluntarily and has raised no objection for grant of these applications as well disposal of the appeal accordingly. Learned Deputy P.G has also extended his no objection.

4. In view of above, it is observed that compromise entered into between the parties appears to be genuine, lawful and without any pressure or coercion from any side and that complainant has voluntarily forgiven the appellant / accused. Therefore, keeping in view the cordial relations between the parties in future, the compromise application under Section 345(2) Cr.P.C is hereby granted and application under Section 346(6) Cr.P.C is accepted. Appellant Ashiq Ali son of Muhammad Ramzan is acquitted of the charges by way of compromise. He is in custody; therefore, he shall be released forthwith, if his custody is not required in any other custody case.

2025 P Cr. L J 1362

[Sindh]

Before Naimatullah Phulpoto and Amjad Ali Sahito, JJ

Abdul Basit---Appellant

Versus

The State---Respondent

Criminal Appeal No. 401 of 2022, decided on 23rd November, 2023.

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

----S. 9(c)---Possession of opium---Appreciation of evidence---Recovery of narcotic substance not proved---Prosecution case was that 38-kilograms opium was recovered from the possession of appellant---Prosecution case was that appellant was travelling on a coach on 01.02.2020 and he was caught hold by the Rangers at 6:00 p.m. in a suspicious manner and recovery of opium was effected from his possession, but neither the driver nor cleaner or any passenger of said coach was examined by the Investigating Officer during investigation---Even ticket of the appellant was not recovered from his possession---Mashirnama of seizure was prepared on 02.02.2020 at 1:00 a.m. at Rangers Head Quarters, which clearly suggestedthat it was not prepared soon after the recovery but was prepared at Rangers Head Quarters and not at the place of incident---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of opium---Appreciation of evidence---Safe custody and safe transmission of the recovered narcotics to laboratory for analysis not proved---Prosecution case was that 38-kilograms opium was recovered from the possession of appellant---Prosecution case was that opium was kept in safe custody and it was safely transmitted to the Chemical Examiner and in support of such claim, prosecution examined Incharge of State Warehouse Customs---However, it was found that the evidence of said witness was of no help to the case of prosecution as during his cross-examination he stated that case property was handed over to him by Mr. "RA" on 20.02.2020 i.e. after 09 days of its recovery, whereas, Mr. "RA" in his cross-examination had stated that case property was kept at Detention Room---Prosecution had failed to examine Incharge of Detention Room in order to prove that narcotic was kept in safe custody---Record further reflected that opium was recovered on 01.02.2020, whereas, it was received in the office of Chemical Examiner on 10.02.2020 without any plausible explanation as to where those sample parcels remained from 01.02.2020 to 10.02.2020---Thus, prosecution had failed to prove safe custody of the alleged recovered opium and its safe transmission to the Chemical Examiner---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic substances---Chain of safe custody---Scope---Chain of custody and transmission of narcotics must be safe and secure because the Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples did not justify convicting the accused on the basis of the report of the Chemical Examiner---Prosecution, therefore, has to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner.

Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession, but as a matter of right.

Tajamal Hussain v. The State 2022 SCMR 1567 rel.

Syed Saaduudin Shah for Appellant.

Peer Riaz Muhammad Shah DAG and Shahid Ali Qureshi, Special Prosecutor Customs for the State.

Date of hearing: 23rd November, 2023.

Judgment

Naimatullah Phulpoto, J.---Abdul Basit was tried by learned Judge, Special Court-II (CNS) Karachi in Special Case No. 18 of 2020 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 06.06.2022, appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to undergo imprisonment for life and to pay fine of Rs.300,000/- and in default in payment of fine, he was ordered to undergo imprisonment for 03 years. Appellant was extended benefit of section 382-B Cr.P.C.

1. Brief facts of the prosecution case are that on 01.02.2020 at about 6:00 p.m. at 71 Wing Sachal Ranger, RCD Highway, Customs Mochko Chowk point, Karachi Rangers stopped a coach and searched the passengers travelling in it. Appellant was found in suspicion manner and from his possession Ranger officials recovered 4 packets containing opium weighing 38 K.G. Appellant was got down from the coach and his custody was handed over to the Customs Officials, hence FIR bearing Crime No. ASO-59/2020-HQ for offence under Section 9(c) of the CNS Act 1997 was registered at PS Customs Karachi on behalf of State.

2. During investigation, opium was sent to chemical examiner on 10.02.2020; positive report was received. On conclusion of usual investigation, final report was submitted against the accused under the above referred section.

3. Trial Court framed Charge against appellant under the above referred sections at Ex.02, to which he pleaded not guilty and claimed trial.

4. At trial, prosecution examined P.W-01/Complainant P.O Rana Azeem Sarwar, P.W-02 mashir Sepoy Noshad, P.W-03 I.O/PO Shahbaz Ahmed, P.W-04 SI Tayyab Uddin of Rangers and P.W-05 IPS Azmat Hussain, who produced the relevant documents.

5. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C. Appellant claimed his false implication in the present case. Appellant raised plea that he was picked up by the Rangers from his house two days prior to the registration of FIR and opium has been foisted upon him. However, neither he examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

6. Trial Court after hearing the learned counsel for the appellant, prosecutor and while assessing the evidence, by judgment dated 06.06.2022, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant appeal.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 06.06.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocate for the appellant mainly contended that according to the case of prosecution opium was recovered from the appellant while he was travelling in coach on 01.02.2020 at 6:00 p.m. whereas, mashirnama of recovery was prepared on 01.02.2020 at 1:00 a.m. at ASO Head Quarters, NMB, Wharf, Karachi; that driver and cleaner of coach were not examined by the I.O; that no Roznamcha entry of Rangers is produced before trial Court; that there is delay of 09 days in sending opium to the chemical examiner for which no plausible explanation has been furnished; that safe custody and safe transmission of the opium to the chemical examiner has also not been established before trial Court; that according to the case of prosecution, Rangers officials informed the recovery of opium from the appellant to the Head Quarters, but no communication record was produced before the trial Court; that ticket of the appellant was also not produced by the I.O before the trial Court. Lastly, it is contended that opium has been foisted upon the appellant by the Rangers due to enmity. In support of his contentions, reliance is placed upon an unreported judgment dated 13.12.2022 passed by Apex Court in Criminal Appeal No. 48 of 2021 (re: Ahmed Ali and another v. The State) and an unreported judgment passed by this Court in Criminal Appeal No. 470/2021.

9. DAG duly assisted by advocate for Customs argued that evidence of Rangers and Custom officials was quite reliable and confidence inspiring and trial court has rightly relied upon their evidence. It is further submitted that evidence of the officials is corroborated by positive report of chemical examiner. As regards to the safe custody and safe transmission to the expert is concerned, DAG submits that delay has been fully explained and there was no allegation of tempering with the substance during custody at the warehouse of the Customs. Lastly, it is argued that appellant has raised a specific plea that he was picked up by Rangers prior to the registration of the FIR but said plea was not substantiated at trial.

2025 P Cr. L J 1454

[Sindh]

Before Jan Ali Junejo, J

Ghulam Mustafa Shaikh---Applicant

Versus

The State and another---Respondents

Criminal Miscellaneous Application No. 173 of 2025, decided on 9th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 561-A---Inherent power of High Court---Scope--- Application for discarding previously recorded evidence --- During the trial of a criminal case, on 01.01.2025, applicant got recorded his examination-in-chief, exhibited a sale agreement and WhatsApp chats but during cross-examination on 07.01.2025, it was discovered that the original examination-in-chief including the sale agreement had been removed from the Court file and replaced with a tampered version with the WhatsApp chats incorrectly marked---The applicant had taken pictures of the original examination-in-chief on 01.01.2025, confirming the tampering, and the Court admitted altering the record---Applicant filed a transfer application before the High Court, which transferred the case on 11.02.2025 without addressing the tampering allegations---Validity---In the present case, there was no record indicating that the applicant raised any objections or denied any part of the evidence when it was read back to him---Furthermore, the applicant did not submit any application before the Trial Court seeking correction of any portion of the evidence---Upon careful review of the record, it appeared that the applicant's evidence was incompletely recorded---Examination-in-chief was conducted on 01-01-2025 and partial cross-examination was recorded on 07-01-2025---As such, the Trial Court retained the authority to re-examine the applicant under S.540,Cr.P.C., provided he filed an application meeting the conditions outlined in that provision---Additionally, the applicant had the option of re-examination, subject to fulfilling the requirements under Arts.132(3) and 133(3) of the Qanun-e-Shahadat, 1984---Given the existence of comprehensive legal provisions, such as S.540,Cr.P.C, and Arts.152(2) & 133(3) of the Qanun-e-Shahadat, 1984, the present Criminal Miscellaneous Application was not maintainable before the High Court under ordinary circumstances---Moreover, the applicant had failed to demonstrate exceptional circumstances that would warrant discarding the previously recorded evidence by invoking the powers under S.561-A, Cr.P.C., in the ongoing proceedings---Application was disposed of.

2014 PCr.LJ 1598; AIR 1929 Calcutta 390 and AIR 1925 Patna 378 ref.

Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427 and FIA through Director General, FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265 rel.

Muhammad Jibran Nasir for Applicant.

Mumtaz Ali Shah, the A.P.G. for the State/Respondent No. 1.

Nadir Khan Burdi for Respondent No. 2.

Date of hearing: 18th March, 2025.

Judgment

Jan Ali Junejo, J.---The present Criminal Miscellaneous Application under Section 561-A of the Code of Criminal Procedure, 1898, has been submitted by Ghulam Mustafa Sheikh (hereinafter referred to as the "Applicant") challenging the evidence of the Applicant recorded in Sessions Case No. 4203 of 2024, which is currently pending before the Court of the learned Additional Sessions Judge-VIII, Karachi-East, following a transfer order dated 11-02-2025 issued by this Court.

1. The Applicant Ghulam Mustafa Shaikh, lodged FIR No.871 of 2024 at P.S. Shahrah-e-Faisal, Karachi under Section 489-F, P.P.C. disclosing therein that he returned from Saudi Arabia after 1.5 years and found that Sikandar Ali Abro, to whom he had transferred money for property purchase, failed to deliver the property or provide a valid explanation. Instead, Sikandar issued five cheques totaling Rs. 62.3 million, which were later dishonored. The cheques were: Rs. 6.5 million (Cheque No. A77132948, dated 30/03/2024), Rs.1.5 million (Cheque No.A77132947, dated 30/03/2024), Rs.7 million (Cheque No. A77132950, dated 30/03/2024), Rs. 17.3 million (Cheque No. A77132949, dated 30/04/2024, UBL Bank, Gulistan-e-Jauhar Branch), and Rs. 30 million (Cheque No. 10221716, dated 19/08/2024, Bank Al Habib, Gulistan-e-Jauhar Branch). Upon depositing them at Gulistan-e-Jauhar Branch, all were bounced.

2. During the investigation, I.O. collected relevant material and submitted a challan dated 08.10.2025 before the XVth Judicial Magistrate, East, Karachi, under sections 489-F, 420, and 468, P.P.C, read with Section 512, Cr.P.C., which was accepted on 18.10.2023, leading to the arrest of Respondent No. 2. As the investigation revealed offenses under sections 467 and 471, P.P.C, exclusively triable by a Sessions Judge, the applicant filed an application on 03.12.2024 under Section 537 read with Section 347, Cr.P.C., resulting in the case being referred to the XIth Additional Sessions Judge, who framed charges against Respondent No. 2 on 17.12.2024. During the trial, the applicant's Examination-in-Chief was recorded on 01.01.2025, where he exhibited a Sale Agreement (Exhibit 6/G) and WhatsApp chats (Exhibit 6/V), but during cross-examination on 07.01.2025, it was discovered that the original Examination-in-Chief, including the Sale Agreement, had been removed from the Court file and replaced with a tampered version, with the WhatsApp chats incorrectly marked as Exhibit 6/G. The applicant had taken pictures of the original Examination-in-Chief on 01.01.2025, confirming the tampering, and the court admitted to altering the record, claiming duplication of a sentence about WhatsApp chats. The applicant filed a transfer application (Cr. Transfer Application No. 02/2025) before the Sindh High Court, which transferred the case on 11.02.2025 without addressing the tampering allegations. The applicant now seeks to declare the trial de novo, re-record his evidence, and stay the proceedings, citing violations of Article 10-A of the Constitution and invoking Section 561-A, Cr.P.C. to secure justice and prevent abuse of process.

3. The Court of XIth Additional Sessions Judge, Karachi-East, provided comments before this Court in transfer proceedings stating that during the trial before the Magistrate, the applicant submitted an application under Section 537 read with Section 347 of the Cr.P.C., resulting in the case being referred to the Sessions Judge and later transferred to the current court for disposal, as it pertained to Section 471, P.P.C, which falls under the jurisdiction of the Sessions Court. On 17.12.2024, the court framed amended charges, and the proceedings were adjourned several times due to the respondent's failure to appear and time limitations. On 01.01.2025, the applicant's examination-in-chief was recorded, during which a duplicated sentence was corrected, and the revised document was signed by the applicant and both parties. Subsequently, the applicant accused the court of tampering with the evidence, but the court clarified that it was merely a correction and dismissed the allegation as unfounded, reaffirming its impartiality. The applicant's no-confidence motion filed on 8.1.2025 was also rejected. The court found no justified grounds for the transfer request but stated it had no objection if the case were reassigned to another court for further proceedings.

4. The learned counsel for the Applicant contends that the trial proceedings before the Additional Sessions Judge- XI, Karachi-East, were compromised due to serious irregularities, particularly the alleged tampering of the applicant's examination-in-chief. He further contends that the original examination-in-chief, which included the Sale Agreement (Exhibit 6/G) and WhatsApp chats (Exhibit 6/V), was unlawfully removed from the court file and replaced with a tampered version, where the WhatsApp chats were incorrectly marked as Exhibit 6/G. He argues that the applicant had photographic evidence of the original examination-in-chief, which confirms the tampering. He further argues that despite this, the trial court admitted to altering the record, claiming it was a correction for a duplicated sentence. He contends that the applicant filed a transfer application (Cr. Transfer Application No. 02/2025) before the Sindh High Court, which transferred the case without addressing the tampering allegations. He asserts that the applicant now seeks to declare the trial de novo, re-record his evidence, and stay the proceedings, citing violations of Article 10-A of the Constitution and invoking Section 561-A, Cr.P.C. to secure justice and prevent abuse of the judicial process. He emphasizes that the integrity of the trial has been compromised, and the applicant's right to a fair trial has been violated, necessitating the intervention of this Honourable Court. The learned counsel has relied upon the case law reported in 2014 PCr.LJ 1598.

5. Per contra, the Learned Counsel for Respondent No. 2 contends that the present Criminal Miscellaneous Application is not maintainable under the law, as the applicant failed to move any application before the learned trial Court regarding the alleged tampering of evidence or irregularities in the examination-in-chief. He further contends that no order of the trial Court has been challenged before this Honourable Court, rendering the application procedurally defective. He argues that the applicant's allegations of tampering are baseless, as the trial court had merely corrected a duplicated sentence in the examination-in-chief, which was duly signed by the applicant and both parties. He emphasizes that the applicant's no-confidence motion was rejected by the trial court, and no valid grounds for transfer were established. He urges the Court to dismiss the application, as it lacks merit and is an attempt to delay the proceedings unnecessarily. The learned counsel has relied upon the case laws reported in AIR 1929 Calcutta 390 and AIR 1925 Patna 378.

6. The learned APG contends that the present Criminal Miscellaneous Application is devoid of merit and should be dismissed. He argues that the applicant failed to raise the issue of alleged tampering or irregularities before the trial court, and no formal application or objection was filed at the appropriate stage. He further contends that the trial court's correction of a duplicated sentence in the examination-in-chief was a routine administrative action, duly acknowledged and signed by the applicant, and does not constitute tampering. He asserts that the applicant's allegations are unsubstantiated and lack concrete evidence, as the photographic evidence presented does not conclusively prove any malicious intent or procedural misconduct. He emphasizes that the applicant's no-confidence motion was rightly rejected by the trial court, and there is no justification for declaring the trial "de novo" or staying the proceedings. He concludes that the application is an attempt to delay the trial and should be dismissed to ensure the timely dispensation of justice.

7. I have carefully considered the arguments presented by the learned counsel representing both parties and thoroughly reviewed the material on record with great attention and caution, in light of the applicable laws. Given that the provisions of Section 561-A of the Cr.P.C. have been invoked, it is appropriate to examine and reproduce the relevant provision of the law as follows:

"561-A. Saving of inherent power of High Court : Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".

A plain reading of the aforementioned legal provision reveals that it confers inherent powers on the High Court to issue orders in three primary scenarios:

1. To enforce any order under the Criminal Procedure Code (Cr.P.C.).

2. To prevent the misuse of the judicial process by any court.

3. To ensure the attainment of justice.

This provision acknowledges that inherent powers are crucial for the High Court to intervene in situations where a strict interpretation or application of the law might lead to injustice. A careful examination of Section 561-A of the Criminal Procedure Code (Cr.P.C.), along with the settled jurisprudence of this Court, makes it abundantly clear that the inherent powers vested under this provision cannot be invoked to interfere with, obstruct, or circumvent the established legal procedures prescribed by law. Moreover, this section does not operate as an alternative remedy where specific statutory avenues for relief already exist. This principle was authoritatively affirmed by the Supreme Court in Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 SC 427), wherein the Apex Court categorically held that: "Moving on, one must not lose sight of another fundamental settled principle that the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. cannot be invoked as a substitute to any other remedy provided under the Cr.P.C." Likewise, in the case of FIA through Director General, FIA and others v. Syed Hamid Ali Shah and others (PLD 2023 SC 265), the Apex Court made the following observation: "First of all, we want to make it clear that a High Court has no power under section 561-A, Cr.P.C. to quash an FIR or an investigation proceeding; therefore, the criminal miscellaneous applications filed under section 561-A, Cr.P.C. by some of the accused persons in the High Court for quashing the FIR and investigation proceeding in the present case were not maintainable. 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 proceedings of any other authority or department, such as FIR registration or investigation proceedings of the police department. 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." An examination of the legal principles established by the Apex Court of Pakistan confirms that Section 561-A of the Cr.P.C. is a comprehensive legal provision. A review of the legal principles established by the Apex Court of Pakistan reveals that Section 561-A of the Cr.P.C. is a comprehensive legal provision. It is a well-settled principle of law that this section does not require the filing of an application before the Trial Court. However, its application is contingent upon the fulfillment of exceptional circumstances explicitly outlined within the provision itself.

1. Since the Applicant has contested the actions of the learned Trial Court, specifically the XIth Additional Sessions Judge, Karachi-East, who modified the Applicant's evidence recorded in Sessions Case No. 4203 of 2024 (now pending before the learned VIIIth Additional Sessions Judge, Karachi-East following a transfer order passed by this Court on 11-02-2025). In its comments, the then-learned Trial Court acknowledged that on 01.01.2025, the Applicant's examination-in-chief was recorded, during which a duplicated sentence was corrected, and the revised deposition was signed by the Applicant. A review of the record further indicates that the Applicant's deposition was also signed by him as an acknowledgment. Consequently, the Applicant cannot now dispute the contents of his deposition, having already endorsed it by signing. It is also appropriate to examine and reproduce the relevant Section 360 of the Cr.P.C. as follows:-

"360. Procedure in regard to such evidence when completed: (I) As the evidence of, each witness taken under Section 356 or Section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.

2025 P Cr. L J 1506

[Sindh]

Before Jan Ali Junejo, J

Adnan Abdul Raheem---Applicant

Versus

The State and 4 others---Respondents

Criminal Miscellaneous Application No. 465 of 2024, decided on 21st March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A---Quashing of order---Petition filed by the respondent under S.22-A, Cr.P.C., for the registration of criminal case was accepted by the Ex-officio Justice of Peace---Validity---Record showed that the complainant supplied oil product to "CR" Store on credit between 19.03.2020 to 15.01.2024, accruing an outstanding liability of Rs. 5,694,274/- and to settle that, "CR" Store issued eight cheques for Rs. 700,000/- each, which were dishonoured due to insufficient funds---Applicant was merely an employee of the store and had no direct or indirect contractual relationship with the complainant/respondent---Cheques in question were issued by "CR" Store and not by the applicant---Bank account from which the cheques were drawn belonged to "CR" Store and the applicant had no ownership, control, or financial authority over the store's transactions---Applicant was neither a director, partner nor a shareholder of "CR" Store---Applicant had no financial stake in the business and there was no evidence to suggest that he was involved in issuing or authorizing the disputed cheques---Dishonored cheques were not signed nor issued by the applicant and his name did not appear as an authorized signatory in the bank records of "CR" Store---No record to the extent that he played any role in the issuance of those cheques---Applicant was not involved in any financial dealings between "CR" Store and the complainant/respondent---Transactions were conducted at the corporate level and the applicant had no decision-making authority in the company's financial matters---Since the applicant had no control over the financial transactions, he could not be held criminally liable for the dishonor of cheques issued by a third party---Complainant/respondent had wrongly implicated the applicant in order to pressurize the actual responsible parties (i.e., the owners of "CR" Store) into settling the dispute, that was a clear abuse of process---Applicant could not be made to suffer for a matter in which he had no involvement---Law must be interpreted in a fair and balanced manner, ensuring that its protection is extended to all individuals without being used as a tool for harassment or coercion---Liability for action rested solely with the individual who committed them---Consequently, imposing culpability on the applicant for the conduct of the main accused, in the absence of prima facie cogent evidence, was legally indefensible---On the basis of material available on the record, no case was made out against the applicant---Petition was allowed, in circumstances.

Imtiaz Ahmed Cheema v. SHO Police Station Daharki, Ghotki and others 2010 YLR 189; Jamil Ahmad Butt and another v. The State through Prosecutor General, Sindh and others 2014 PCr.LJ 1093 and Ammad Yousaf v. The State and another PLD 2024 SC 273 rel.

Abdul Majeed Khoso for Applicant.

Muhammad Waqas Hussain for Respondent No. 4.

Miss Hina, Assistant PG for the State.

Date of hearing: 21st March, 2025.

Judgment

Jan Ali Junejo, J.---Through this Criminal Miscellaneous Application, the Applicant has sought setting aside of the Order dated 02-05-2024 (hereinafter referred to as the "Impugned Order") passed by the learned Additional Sessions Judge-XI/Ex-Officio Justice of Peace, Karachi South, whereby directions were issued to the SHO, P.S. Arambagh, to register an FIR against the Applicant and others.

1. The present Criminal Misc. Application arises from a dispute where the complainant, M/s. The Paracha Textile Mills Pvt. Ltd., supplied oil products to Chase Retail Store on credit between 19-03-2020 to 15-01-2024, accruing an outstanding liability of Rs. 5,694,274/-. To settle this, Chase Retail Store issued eight cheques (Nos. 87965219 to 87965226, dated 14-06-2023 to 22-06-2023 for Rs. 700,000/- each, drawn on Bank Al-Falah, all of which were dishonored by the complainant's bank (Habib Metropolitan Bank) due to insufficient funds. Following subsequent demands, the accused issued a cheque (No. 99965961, dated 18-03-2024) and the same was dishonored. After persistent non-payment, the complainant sought FIR registration under Sections 22-A and 22-B Cr.P.C. before the Sessions Court, which was referred to the Additional Sessions Judge-XI/Ex-Officio Justice of Peace, Karachi South, to direct the SHO of P.S. Arambagh on 02-05-2024 to register an FIR against Chase Retail Store's owner and others including the present Applicant. Challenging this order as aggrieved, the Applicant has approached this Court under Section 561-A Cr.P.C. for its quashing, alleging misuse of process. The core issues involve the dishonor of cheques, subsequent negotiations, and the legality of the FIR directive under the cited provisions.

2. Mr. Abdul Majeed Khoso, learned counsel for the Applicant, argued that the Impugned Order is illegal, void, and an abuse of process as it mechanically directs FIR registration despite the Applicant having no nexus with the alleged transaction. He emphasized that the Applicant is merely an employee of Chase Retail Store, without any ownership, directorial role, or financial authority, and has neither issued, signed, nor delivered the dishonored cheques. Furthermore, the absence of privity of contract between the Applicant and the complainant eliminates any criminal liability, making the matter purely civil in nature, as evidenced by the pending Civil Suit No. 439/2024 before the XVth Senior Civil Judge, Karachi-South. He contended that Section 22-A, Cr.P.C. cannot be misused to turn civil disputes into criminal cases and cited PLD 2013 Sindh 488 and 2023 PCr.LJ 1588 in support. Additionally, the delay of nine months in filing the application under Section 22-A, Cr.P.C. suggests mala fide intent to harass the Applicant and pressurize the actual responsible parties.

3. Mr. Muhammad Waqas Hussain, learned counsel for the complainant (Respondent No.4), contended that the Impugned Order was passed in accordance with law, and the Applicant's role in financial dealings of Chase Retail Store justifies an investigation. He argued that the Applicant was actively involved in transactions with the complainant, and the FIR is necessary to determine the extent of his responsibility. He further submitted that the complainant's financial losses warrant a thorough probe, and the order for FIR registration was legally justified. Lastly, the learned counsel prayed for dismissal of the Criminal Misc. Application.

4.(sic) Miss Hina, learned Assistant Prosecutor General, supported the Impugned Order, arguing that the Criminal Miscellaneous Application is not maintainable as the Applicant's plea of non-involvement is a factual issue requiring police investigation. She emphasized that prima facie material exists to justify FIR registration, and the Court should not interfere with the process of investigation at this stage.

1. I have considered the arguments advanced by the learned counsel for the parties and perused the record with their assistance. The primary question before this Court is whether the learned Ex Officio Justice of Peace correctly exercised his jurisdiction under Section 22-A Cr.P.C. It appears that the Applicant has no privity of contract with Respondent No.4 (M/s. The Paracha Textile Mills Pvt. Ltd.). The alleged supply of oil products was made to Chase Retail Store, which is a separate legal entity. The Applicant was merely an employee of the store and had no direct or indirect contractual relationship with the Respondent No.4. The cheques in question were issued by Chase Retail Store and not by the Applicant. The bank account from which the cheques were drawn belongs to Chase Retail Store, and the Applicant has no ownership, control, or financial authority over the store's transactions. The Applicant is neither a director, partner, nor a shareholder of Chase Retail Store. He has no financial stake in the business, and there is no evidence to suggest that he was involved in issuing or authorizing the disputed cheques. The dishonored cheques were not signed, nor issued by the Applicant. His name does not appear as an authorized signatory in the bank records of Chase Retail Store. There is no record to the extent that he played any role in the issuance of these cheques. The Applicant was not involved in any financial dealings between Chase Retail Store and the Complainant (Respondent No.4). The transactions were conducted at the corporate level, and the Applicant had no decision-making authority in the company's financial matters. Since the Applicant had no control over the financial transactions, he cannot be held criminally liable for the dishonor of cheques issued by a third party. The Complainant (Respondent No.4) has wrongly implicated the Applicant in order to pressurize the actual responsible parties (i.e., the owners of Chase Retail Store) into settling the dispute. This is a clear abuse of process, and the Applicant should not be made to suffer for a matter in which he has no involvement. It has been observed that Section 22-A, Cr.P.C. has been frequently misused, leading to unwarranted legal actions in numerous cases. The legislative intent behind this provision was never to allow its indiscriminate invocation for harassing individuals who, in the course of their duties, take lawful actions against accused persons. Courts must exercise caution and avoid mechanically entertaining applications under Sections 22-A and 22-B, Cr.P.C., without first assessing whether the applicant has approached the Court with clean hands or if the application is motivated by malice. Failure to do so could have serious consequences, particularly for law enforcement officers performing their official duties, as it may discourage them from taking necessary legal actions. The law must be interpreted in a fair and balanced manner, ensuring that its protection is extended to all individuals without being used as a tool for harassment or coercion. Reliance may be placed on the principle established by this Court in Imtiaz Ahmed Cheema, v. S.H.O., Police Station Daharki, Ghotki and others (2010 YLR 189), wherein it was emphasized that courts must exercise due diligence before directing the registration of an FIR. Reference may also be made to the case of Jamil Ahmad Butt and another v. The State through Prosecutor-General, Sindh and others (2014 PCr.LJ 1093), wherein this Court emphatically held that: "There are instances of misuse of provisions of section 22-A, Cr.P.C. and, therefore, it is the duty of the Court that such misuse should be taken care of and such application should not be lightly entertained in a mechanical manner for direction to the police to register a statement of complainant and start prosecuting the alleged accused persons". It is a well-established legal principle that liability for actions rests solely with the individual who commits them. Consequently, imposing culpability on the Applicant for the conduct of the main accused-in the absence of prima facie cogent evidence-is legally indefensible. This aligns with the authoritative precedent set by the Supreme Court of Pakistan in Ammad Yousaf v. The State and another (PLD 2024 SC 273), wherein the Apex Court unequivocally affirmed that: "Besides, if the alleged views orally expressed by the main accused during the live telecast are believed to be true and in violation of any reasonable restriction imposed by law, a question arises as to how the petitioner, can be held responsible for the act of the main accused, merely on the ground that he being a member of the administration of the broadcaster, is equally responsible. It is a settled principle of law that each person is responsible for his deeds and actions, hence, holding the petitioner responsible for the act of the main accused, without prima facie cogent evidence, is unjustified. Consequently, in the absence of a complaint by a competent authority to the extent of the offences of P.P.C., mentioned in section 196 of the Code and because of lack of the required material, initiating judicial proceedings against the petitioner is an abuse of the process of the Court. The manner in which the petitioner was proceeded against, amounts to inciting fear not only amongst the entire administration of the broadcaster, but will also have an impact upon rest of the print and electronic media, which will certainly obstruct their constitutional right. On the basis of the material available on the record, no case was made out against the petitioner. The fora below have ignored these constitutional, legal, and factual aspects of the case and have failed to exercise their mandatory inherent powers in favour of the petitioner, which is an illegality. Thus, in view of the above, the petition is converted into an appeal and is allowed. The impugned judgment of the High Court and that of the Trial Court are set aside. The proceedings initiated against the petitioner, pursuant to the above referred FIR are quashed to his extent. He is acquitted from the case". The underlining is supplied.

2. Upon thorough consideration of the preceding analysis, the following conclusions are reached:

2025 P Cr. L J 1518

[Sindh (Hyderabad Bench)]

Before Mehmood A. Khan and Abdul Hamid Bhurgri, JJ

Muhammad Sadique---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. D-147 of 2022 and D-03 of 2023, decided on 18th February, 2025.

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

----S. 9(c)---Possession of narcotic substance---Procedural chain---Scope---Prosecution is required to meticulously establish each step in the process, starting from the recovery of the narcotic substance to the preparation of sample parcels, ensuring their safe custody and secure transmission to the relevant laboratory---Such procedural chain must be proven beyond any doubt by the prosecution---If, any link in the chain is missing, the benefit of the doubt would be extended to the accused.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Possession of narcotic substance---Appreciation of evidence---Delay of seven days in sending the sample to the laboratory for analysis---Effect---Prosecution case was that 36-kilograms opium was recovered from the truck of the accused-appellants---Recovery purportedly took place on 12.01.2021, yet the sample was forwarded for chemical analysis on 19.01.2021 reflecting unexplained delay of seven days---Despite the criticality of establishing an unbroken chain of custody, the prosecution neither provided any justification of this delay nor examined the Malkhana Incharge to corroborate the safe keeping of the sample---As per R.4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, such lapses and delay eroded the reliability of the case and significantly weakened the prosecution position, casting serious doubts in its overall integrity---Appeal against conviction was allowed, in circumstances.

Akhtar Gul v. The State 2022 SCMR 1627; Qaiser v. The State 2022 SCMR 1641; Muhammad Hazir v. The State 2023 SCMR 986 and Asif Ali v. The State 2024 SCMR 1408 rel.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotic substance---Appreciation of evidence---Malkhana Incharge not presented for evidence---Adverse presumption---Effect---Prosecution case was that 36-kilograms opium was recovered from the truck of the accused-appellants---Prosecution was under legal obligation to examine Malkhana Incharge in order to prove safe custody particularly when there was unexplained delay in sending samples to Chemical Examiner---Withholding such crucial evidence inferred an adverse presumption under Art. 129 (g) of the Qanun-e-Shahadat, 1984---Non-production of such important witness inferred two possibilities, that if that witness had been produced he would have not supported the case of prosecution and or no such witness was in existence---Appeal against conviction was allowed, in circumstances.

Lal Jan v. The State 2023 SCMR 1009 and Said Wazir v. The State 2023 SCMR 1144 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Where a single circumstance creates reasonable doubt in a prudent mind, its benefit must be given to the accused not as a grace or concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Muhammad Saleem Laghari for Appellant (in Criminal Appeal No. D-147 of 2022).

Mian Taj Muhammad Keerio for Appellant (in Criminal Appeal No. D-03 of 2023).

Shawak Rathore, Deputy Prosecutor General for the State.

Date of hearing: 4th February, 2025.

Judgment

Abdul Hamid Bhurgri, J.--- By this consolidated judgment, both criminal appeals stemming from the common judgment dated 03.12.2022 are addressed. These appeals pertain to Crime No.87 of 2021, registered at Police Station Matiari, concerning charges under Section 9(c) of the Control of Narcotic Substances Act, 1997. The appellants were convicted and sentenced to life imprisonment, accompanied by a fine of Rs.200,000/- each. In case of default, an additional six months of Simple Imprisonment was prescribed. However, the appellants were accorded the benefit of Section 382-B of the Code of Criminal Procedure. These appeals challenge the aforementioned judgment.

1. According to the facts outlined in the FIR, on 12.11.2021, SIP Sikandar Ali of Police Station Matiari, along with his subordinate staff, was conducting patrol duties at approximately 1930 hours in an official vehicle. Upon reaching Nasarpur Chowk near Bagri Graveyard, the police initiated random inspection of vehicles. During this process, a Hino Mini Truck bearing registration No.LCA-341, travelling from Hyderabad, was intercepted. The truck was occupied by one individual in the driver's seat and two others seated beside him. Observing the police, one individual fled towards the eastern side of the road, while the remaining two were apprehended. Upon interrogation, the driver identified himself as Muhammad Sadique, son of Abdul Qadir Mengal, and the other apprehended person disclosed his name as Misri Khan, son of Ghulam Rasool Chakrani. Both individuals further revealed the identity of an absconding accomplice as Muhammad Suleman, son of Talib Chakrani. A search of the vehicle uncovered a plastic bag near the driver's seat, containing 20 packets of opium, weighing a total of 36 kilograms. The recovered contraband was promptly sealed for chemical analysis. During questioning, the accused confessed that the opium was intended for sale, but they failed to produce any documentation for the vehicle. The arrest and seizure were documented on site in the presence of witnesses, namely ASI Abdul Hakeem and PC Imam Bux. The accused, along with the seized property, were subsequently taken to the Police Station, where a formal FIR was lodged.

2. After completing the investigation, the Investigating Officer submitted the challan to the competent court. The case was then transferred to the learned Trial Court, where charges were framed after complying of Section 265-C of the Code of Criminal Procedure. The accused pleaded 'not guilty' and opted for trial.

3. To substantiate its case, the prosecution presented following witnesses:

i. PW-1 SIP Sikander Ali/complainant as well as I.O of the case (Exh.3) who produced roznamcha entries including departure, arrival and malkhana, mashirnama of arrest/recovery, letter addressed to chemical examiner, FIR and report of chemical examiner (Exh.3/A to 3/h).

ii. PW-2 mashir namely ASI Abdul Hakeem as PW-2 (Exh.4).

1. After examining above witnesses, the learned State counsel closed the side of prosecution vide statement Exh.5.

2. The accused, in their statements under Section 342 of the Code of Criminal Procedure, categorically denied the allegations and proclaimed their innocence, alleging false implication. However, they neither examined themselves under oath as permitted by Section 340(2) of the Code of Criminal Procedure nor lead any defence evidence.

3. The trial court after hearing the learned counsel for the parties and evaluating the evidence, vide Judgment dated 03.12.2022 convicted and sentenced Appellants/accused, as stated above. Hence, present appeals.

4. Learned Counsel for the appellants have advanced following submissions:-

i. The appellants assert their innocence, contending that they have been falsely implicated in the matter in hand.

ii. That the complainant and the Investigating Officer (I.O) is one and same, which introduces a conflict of interest.

iii. The ownership of the vehicle allegedly used in the recovery was not verified or proved by prosecution.

iv. The official in-charge of the safe custody of the purported sample parcels was conspicuously absent from the witness stand.

v. That the samples were sent for chemical examination after an inexplicable and undue delay spanning several days, further eroding the prosecution's credibility.

vi. That admittedly recovery was made at National Highway which is a busy road but no private witness was cited. In conclusion, the counsels for appellants fervently pray for their acquittal.

1. Learned Deputy Prosecutor General (DPG) in support of the Judgment raised following contentions:-

i. The name of the accused/appellants is explicitly mentioned in the First Information Report (FIR), along with their alleged role in the offence.

ii. The substantial quantity of opium was recovered from the possession of the appellants/accused, underscoring the gravity of the offence.

iii. That the prosecution has successfully established the case against the accused by presenting cogent and credible evidence.

iv. Consequently, the learned DPG prays for the dismissal of the appeals and the affirmation of the trial court's Judgment of conviction.

1. We have heard learned Counsels for both the parties and scanned the entire evidence on record and perused the impugned Judgment.

2. It is trite law in Criminal jurisprudence that the prosecution has to prove the case against accused without any reasonable doubt. In cases under Control of Narcotic Substances Act, 1997, the prosecution is required to meticulously establish each step in process, starting from the recovery of the narcotic substance to the preparation of sample parcels, ensuring their safe custody, and secure transmission to the relevant laboratory. This procedural chain must be proven beyond any doubt by the prosecution. If, any link in the chain is missing, the benefit of the doubt is to be extended to the accused. It is the prosecution's responsibility to substantiate every aspect of its case, which includes presenting witnesses who kept the custody and one who is responsible for transmitting the samples to the office of the chemical examiner. Any failure in this process can undermine the entire case of the prosecution. The recovery purportedly took place on 12.01.2021, yet the sample was forwarded for chemical analysis on 19.01.2021 reflecting unexplained delay of seven days. Despite the criticality of establishing an unbroken chain of custody, the prosecution neither provided any justification of this delay nor examined the Malkhana Incharge to corroborate the safe keeping of the sample. As per Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, such lapses and delays erode the reliability of the case and significantly weaken the prosecution position, casting serious doubts in its overall integrity. As per prosecution case PW-1 Sikander Ali, stated to have deposited case property in Malkhana so also Chemical lab, during his cross-examination stated "that the case property was sent to chemical examiner after about seven days; voluntarily says; it took time to get permission from higher ups". This delay was fatal to the case of prosecution as the Hon'ble Supreme Court in the case of Akhtar Gul v. The State reported in 2022 SCMR 1627, observed as under:-

"3. We have heard the learned counsel for the petitioner, learned counsel for the State, perused the record and observed that the recovery was effected on 16.10.2011, whereas according to the report of Forensic Science Laboratory (FSL), the sample parcels were received there on 21.10.2011 through FC 3087. Neither the Moharrar who kept the sample parcel in the Malkhana from 16.10.2011 to 21.10.2011 nor the constable FC 3078 was produced by the prosecution to establish the safe custody and safe transmission of the sample parcels to the concerned laboratory. So safe custody and safe transmission has not been proved by the prosecution."

In another case of Qaiser v. The State (2022 SCMR 1641), the Hon'ble Supreme Court had held as under:-

"4. In the present case no police official was produced before the Trial Court to report about safe custody of samples if entrusted to him for being kept in the Malkhana in safe custody. Even the police official whose belt number (FC 4225) has been mentioned by the Government analyst in his report, was not produced by the prosecution to depose regarding the safe deposit or the said sample parcels in the concerned laboratory. The record reveals that the recovery was allegedly affected on 19.08.2011 whereas, according to the report of chemical examiner, the sample parcels were received in the said office on 26.08.2011. Nobody from the prosecution side was produced to claim that during this period the said sample parcels remained intact in his possession or under his control in the Malkhana in safe custody. Even the prosecution is silent as to where remained these sample parcels from 19.08.2011 to 26.08.2011. In absence of establishing the safe custody and safe transmission, the, element of tampering cannot be excluded in this case........"

Similar view was taken by the Honourable Supreme Court in the case of Muhammad Hazir v. The State (2023 SCMR 986), with following observations:-

"3. After hearing the learned counsel for the appellant as well as the learned state counsel and perusing the available record along with the impugned judgment with their assistance, it has been observed by us that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrar nor the Constable Shah Said (FC-2391) who deposited the sample parcels in the concerned laboratory was produced. It is also a circumstance that recovery was affected on 10.02.2015 whereas the sample parcels were received in the said laboratory on 13.02.2015 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. This Court in the cases of Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ekramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt."

Regarding the delay in sending samples the Hon'ble Supreme Court in the case of Asif Ali v. The State reported in 2024 SCMR 1408, observed as under:-

"8. In the instant case, statements of PW-3 (Khurram Shehzad H.C.) and PW-4 (Tasawar Hussain S.I./Investigating Officer) reveal that the seven sample parcels of the charas allegedly recovered on 27.05.2021 were handed over to Ahsan Shehzad S.I. for transmission to office of the lab on 31.05.2021 i.e. much beyond seventy two hours of the seizure/in violation of rule 4(2) of the Rules of 2001 for which no plausible explanation has been offered by the prosecution."

1. It was incumbent upon the prosecution to examine Malkhana incharge in order prove safe custody particularly when there was unexplained delay in sending samples to chemical examiner withholding such crucial evidence infer adverse presumption under Article 129(g) of Qanun-e-Shahadat Order,1984, which reads as under:-

"that evidence which could be and is not produced would, produced be unfavourable to the person who withholds it"

1. Non-production of such important witness infers two possibilities, that if that witness had been produced he would have not supported the case of prosecution and or no such witness is in existence.

2. On the point of non-examination of material witness and delay in sending parcels to chemical examiner, the Honourable Supreme Court, in Lal Jan v. The State (2023 SCMR 1009) has held as under:-

"3. We have heard the learned counsel for both sides and without touching the merits of the case, at the very outset, observed that the recovery was effected on 03.07.2015 whereas the sample parcels were received in the office of Forensic Science Laboratory, Khyber Pakhtunkhwa on 15.07.2015 through Arshad Haroon, Constable-32, but the said constable was never produced by the prosecution to establish the safe transmission of the sample parcels to the concerned laboratory story and there is no explanation as to why his evidence was withheld."

Furthermore in the case of Said Wazir v. The State, reported in 2023 SCMR 1144, the Hon'ble Supreme Court held as under:-

"3. Heard and perused the record. It has been observed by us that recovery was effected on 09.06.2016 whereas sample parcels were received in the office of chemical examiner on 13.06.2016 without any plausible explanation as to where remain these sample parcels from 09.06.2016 to 13.06.2016. The safe custody and safe transmission of the sealed sample parcels has also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No. 1374), who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution. Even the prosecution failed to prove the ownership of the vehicle. This court in the cases of Qaiser Khan v. The State through Advocate General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt."

1. The prosecution has produced the entry No.53 of register No.19 to establish that the case property was deposited in Malkhana on 12.01.2021. We have carefully perused such entry which is available at page 25 of the paper book of the appeal, the entry is so blur and illegible, we also perused the entry available in R&Ps which was also illegible; on our specific query from learned DPG, whether original entry was produced before trial Court, he had no reply to that; we have also gone through the deposition of PW Sikander Ali, it is also not written by the trial judge if original seen and returned. This entry can by no stretch of imagination be said to be sufficient to prove safe custody of the case property.

2025 P Cr. L J 1550

[Sindh]

Before Shamsuddin Abbasi, J

Mst. Erum Suleman Ali---Applicant

Versus

The State and 4 others---Respondents

Criminal Miscellaneous Application No. 701 of 2024, decided on 25th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 561-A & 173---Penal Code (XLV of 1860), Ss. 302, 324 & 502---Inherent power of High Court---Quashing of order---Trial Court summoned the applicant through non-bailable warrant in the criminal case, whereas she was neither named in FIR nor in report under S.173,Cr.P.C., but she was arraigned as accused in supplementary challan---Validity---In the present case, two FIRs of the same police station were registered for the same incident, however one FIR was disposed of in "A" Class whereas report under S.173, Cr.P.C., was submitted in other FIR---Judicial Magistrate had taken the cognizance on the final report submitted by the Investigating Officer under S.173, Cr.P.C., and sent the case to Sessions Judge concerned as S.302, P.P.C., was exclusively triable by the Court of Session---Sessions Judge transferred the case to Additional Sessions Judge on administrative grounds for disposal in accordance with law---Trial Court after formal proceedings, framed the charge against the accused---As per record, neither applicant was nominated in the FIR nor her name came on surface in the final report/challan---After submission of final report under S.173, Cr.P.C., Investigating Officer furnished supplementary challan before concerned Judicial Magistrate, who sent the supplementary challan to Trial Court on the ground that he had already taken the cognizance on the report under S.173, Cr.P.C., and now he had become functus officio---Trial Court after receiving supplementary challan had not passed any order and after compliance under S.265-C, Cr.P.C., framed the charge against the accused who were placed on the list of column of accused in the final report forwarded by the Judicial Magistrate under S.173, Cr.P.C.---Case was fixed for recording evidence when legal heirs of deceased had pointed out that before proceedings further Trial Court had to pass order on the supplementary challan and Trial Court after hearing the parties had passed the impugned order by issuing Non Bailable Warrant against the applicant---Applicant had been implicated by the Investigating Officer after collecting evidence against her as she had played role for disappearing evidence in connivance with accused, who was husband of the applicant, which required adjudication---So far as the points raised by the applicant that neither she was nominated in the FIR nor her name was mentioned in the report under S.173, Cr.P.C., as accused, charge was framed against co-accused and Trial Court was not competent to take cognizance at belated stage were concerned, Trial Court could take cognizance in view of the provisions of S.193(1),Cr.P.C., on receiving the supplementary report from Judicial Magistrate concerned---No any illegality was found while taking cognizance of offence by Trial Court against the applicant---However, instant criminal miscellaneous application was converted to bail and applicant was admitted to protective bail for a period of Seven (7) days---Operation of Non Bailable Warrant issued against the applicant was suspended for that period---Petition, disposed of accordingly.

Amir Mansoob Qureshi for Applicant.

Neel Parkash, D.P.G. for the State.

Muhammad Jibran Nasir, Rana Daniyal Akram, Daniyal Muhammad Hussain and Abdul Ghaffar Memon for Respondents Nos. 4 and 5.

Date of hearing: 11th March, 2025.

Order

Shamsuddin Abbasi, J.---In this Criminal Miscellaneous Application under section 561-A, Cr.P.C order dated 05.06.2024 passed by learned Additional Sessions Judge-I Karachi East has been sought for to be set aside whereby, in order to effect appearance of applicant before trial Court/Court of Sessions, NBW has been issued against her, who was neither named in FIR nor in report under section 173, Cr.P.C but she was arraigned as accused in supplementary challan and learned Magistrate concerned sent up the case to the Court of Session for trial.

1. The brief facts of the case are that on 16.08.2020 there was valima ceremony of his son, which was ended at 12:30 a.m. and they reached home on 17.08.2020 at 02:15 a.m., 5/6 friends of his son also accompanied them to home. Wife of complainant went to second floor of the house and started shouting that someone has committed theft as articles are lying outside Almirah. Complainant went to rooftop and fired 3/4 shots, however, no one was on the rooftop. One of his neighbors called on 15, three police personnel came, Zeeshan Ali friend of his son, was coming down from first floor, police personnel presumed him to be a thief and fired on him to which he sustained injury, who was taken to hospital for treatment. Checking the house revealed that prize bonds of Rs.1,100,000/-, two normal jewellery sets, two bangle, earing were missing, hence he came to police station and lodged such FIR No.254/2021 was registered under sections 380, 34, P.P.C was registered at P.S. Al-Falah, Korangi Karachi. During treatment inured Zeeshan Ali expired, therefore, on behalf of State FIR No.255/2020 was also registered under sections 324, 502, 302, P.P.C against PC Zulfiqar for causing firearm injury to Zeeshan Ali.

2. Perusal of record reveals that upon conclusion of investigation, IO submitted report under "A" Class in FIR No.254/2020 while charge sheet was submitted against accused Syed Suleman Ali, Syed Kamran Ali and PI Saadat Butt in FIR No.255/2020. However, learned Magistrate concerned disposed of the said FIR in view of the dictum laid down in Sugran Bibi case and after taking cognizance in FIR No.255/2020, sent the R and P of case to the Court of Session for trial vide order dated 03.03.2021.

3. Thereafter Investigating Officer submitted supplementary challan in FIR No.255/2020, mentioning the name of present applicant in Column 2 of charge sheet, however, learned Magistrate forwarded to the same to the Court of Sessions, empowered to take cognizance, vide order dated 26.06.2023. Later on, upon application filed by legal heirs of deceased, learned trial Court took cognizance against applicant and issued NBWs against the present applicant.

4. Learned counsel for the applicant mainly contended that applicant was neither nominated in the FIR no IO placed her name in the list of accused in final challan; that learned concerned Magistrate after accepting final challan sent the case for disposal in accordance with law to learned Sessions Judge on the ground that Section 302, P.P.C is exclusively triable by learned Sessions Court; that learned Sessions Judge sent this case to learned Additional Sessions Judge-I, Karachi East for disposal in accordance with law; that learned trial Court proceeded with the case and charge was framed and case was fixed for recording the evidence of prosecution witnesses, till then no cognizance has been taken by learned trial Court against the applicant but later on, on the basis of application moved by the legal heirs of deceased, cognizance has been taken against the applicant on the basis of supplementary challan; that the impugned order passed by learned trial Court is improper, illegal and incorrect and is liable to be set aside; that learned concerned Magistrate has already taken cognizance on the report under section 173, Cr.P.C wherein applicant has not been implicated by the IO; that even learned trial Court after receiving supplementary challan has not passed any order or taken the cognizance against the applicant and charge was framed; that trial Court cannot exercise the powers in terms of Section 265-D, Cr.P.C, therefore, impugned order is void in the eyes of law; that learned trial Court can issue summons against the proposed accused but in the present case, without hearing the applicant, learned trial Court issued NBWs against the applicant; that learned trial Court has failed to pass any speaking order; that after framing the charge, cognizance taken by the learned trial Court is illegal, null and void. He finally prayed that impugned order may be set aside.

2025 P Cr. L J 1563

[Sindh]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

Ali Aziz---Appellant

Versus

The State---Respondent

Criminal Appeal No. 66 of 2022, decided on 14th March, 2024.

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

----S. 9(c)---Constitution of Pakistan, Art. 10-A---Possession of narcotics---Right to fair trial---Recording of evidence in absence of defence counsel---Legality---Accused was charged for having huge quantity of narcotic substances---Record showed that Trial Court had committed illegality while recording examination-in-chief of a witness in absence of defence counsel, amounting to denial of a fair trial---Another illegality committed by the Trial Court was regarding examination-in-chief of another witness and his cross-examination on the same day by newly appointed defence counsel without preparation and instructions for the offence under S. 9(c) of Control of Narcotic Substances Act, 1997, which was punishable with death or imprisonment for life---Fair opportunity should have been provided by the Trial Court for conducting the trial---Right to fair trial is a fundamental and Constitutional right belonging to every citizen---While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment were essential attributes of criminal justice system based on the Constitutional command---Illegalities committed by the Trial Court in the present case were not curable under the law---Appeal was allowed by setting aside conviction and sentence and case was remanded to the Trial Court for recording evidence of witnesses afresh in the presence of defence counsel.

Shoukat Hayat, Saqlain Shafi Raj and Muhammad Junaid Akram for Appellant.

Peer Riaz Muhammad Shah, DAG for the State.

Date of hearing: 14th March, 2024.

Judgment

Naimatullah Phulpoto, J.---Ali Aziz appellant along with co-accused Muhammad Nawaz, Mukhtiar Ali alias Jani and Javed were tried by I-Additional Sessions Judge/MCTC, Malir Karachi in S.C.No.1293 /2020. After regular trial, vide judgment dated 04.01.2022, above named co-accused were acquitted. However appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to undergo imprisonment for life with fine of Rs.1 Million. In case of default, he was ordered to suffer undergo 06 months SI. Benefit of Section 382-B Cr.P.C was extended to the appellant.

1. At the very outset, learned advocate for the appellant pointed out that trial court has committed several illegalities while conducting trial and such illegalities are not curable under the law. Learned advocate while highlighting the illegalities committed by the trial Court pointed out that examination-in-chief of P.W-3 Aamir Rasheed was recorded by the trial Court on 14.09.2021 at Ex.13 in absence of advocate for the appellant/accused and trial Court in a note in deposition mentioned that instead of Mr. Abdul Rasheed Katpar advocate for the appellant case shall be proceeded further by Mr. Abdul Jalil Hadi advocate on behalf of all accused as per previous orders. It is pointed out that Mr. Abdul Jalil Hadi advocate was appointed by the trial Court as a defence counsel on state expenses. Thereafter, Mr. Abdul Rasheed Katpar advocate filed power on behalf of appellant Ali Aziz. Learned advocate for the appellant further pointed out that evidence of P.W-4 Habibullah was recorded by the trial Court at Ex.16 on the same date (14.09.2021) and Mr. Abdul Jalil Hadi advocate had cross-examined the witness on same date. It is submitted that right of a fair trial was not provided to the appellant. It is further submitted that sufficient time was not provided to the newly appointed advocate for seeking instructions from the appellant for proceeding with the case before the trial Court; that trial Court failed to comply with Article 10-A of the Constitution of Pakistan, 1973. Lastly, it is submitted that illegalities committed by the trial Court are not curable in law trial is vitiated and prayed for remand of the case for recording examination-in-chief and cross-examination of P.Ws Aamir Rasheed and Habibullah in presence of advocate as well as the appellant.

2. DAG concedes to the legal position that fair trial has not been conducted by the trial Court and illegalities highlighted by the defence counsel are not curable under the law. He has also submitted for remand of the case to the trial Court for recording evidence of the aforesaid P.Ws afresh in accordance with law.

3. Heard learned counsel for the parties, re-examined the relevant record and have come to the conclusion that trial Court has committed illegality while recording examination-in-chief of P.W Aamir Rasheed on 14.09.2021 in absence of defence counsel, it amounts to denial of a fair trial. Another illegality committed by the trial Court was regarding examination-in-chief of P.W Habibullah and his cross-examination on the same day by newly appointed defence counsel without preparation and instructions in an offence under Section 9(c) of CNS Act 1997 which is punishable with death or imprisonment for life. A fair opportunity should have been provided by the trial Court for conducting trial. We hold that fair trial was not conducted in terms of Article 10-A of the Constitution of Pakistan, 1973, which speaks about right of fair trial and due process both in civil as also in criminal proceedings, which reads as under:

"10-A.Right to Fair Trial. 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."

2025 P Cr. L J 1568

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Abdur Rehman, JJ

Lal Khan Shar---Applicant

Versus

Baroch and 2 others---Respondents

Criminal Miscellaneous No. S-934 of 2023, decided on 6th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A , 22-A & 154---Penal Code (XLV of 1860), S. 489-F---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Order passed by Ex-officio Justice of Peace for the registration of FIR under S.489-F, P.P.C---Petitioner assailed order passed by Ex-officio Justice of Peace and sought quashing of the same---Held: Petitioner received loan of Rs. 50,00,000/- from the respondent and issued him a cheque which was dishonoured when presented before the concerned bank---Section 489-F, P.P.C did not distinguish or categorize reasons for creating the offence of issuance of a cheque that had been dishonoured---Said provisions of law did not create a classification of cheques; only that a cheque issued in respect of an obligation was dishonoured---Since S.489-F, P.P.C, did not allow for any extraneous considerations to be taken into account before it could be triggered; it was in the nature of a self-executory provision, so to speak, and as long as a cheque in respect of an obligation was dishonoured upon presentation and an endorsement to that effect was provided by the bank, the offence was complete and the application narrating such an occurrence had to be acted upon in terms of S.154, Cr.P.C---What was placed before Justice of Peace in the present matter was a cheque and a slip provided by the bank showing that the cheque had been dishonoured---Ex-officio Justice of Peace had to ensure whether, from the facts narrated in the application, any cognizable case was made out or not, and if yes, then he could obviously issue directions that the statement of the complainant be recorded under S.154, Cr.P.C---Such powers of the Justice of Peace were limited to aiding and assisting in the administration of the criminal justice system---Justice of Peace had no right to assume the role of an investigating agency or a prosecutor but had been conferred with a role of vigilance to redress the grievance of those complainants who had been refused by the Police Officials to register their reports---Petition was dismissed, in circumstances.

Akhtar Hussain Malik for Applicant.

Muhammad Tariq Panhwar for Respondent No. 1.

Aftab Ahmed Shar, Additional PG Sindh.

Date of hearing: 6th May, 2024.

Order

Adnan-ul-Karim Memon, J.---This Criminal Miscellaneous Application is directed against the Order dated 10.6.2023, whereby,the Justice of Peace/IIInd Additional and District and Sessions Judge, Ghotki, in Criminal Misc. Application No.1493 of 2023 filed by the private respondent for registration of FIR against the applicant was allowed, which is the subject matter of the present Criminal Miscellaneous Application.

1. As per respondent, the applicant received loan of Rs.50,00,000/- (Fifty Lac) from the respondent and, issued him a cheque bearing No. 0069331200 of Faysal Bank Sadiq Abad Branch, dated: 17.10.2022 of Rs. 50,00,000/- which upon presentation, was dishonored on 18.10.2022. Upon reporting such fact, the applicant refused to return the loan amount. Compelling him to approach the Justice of Peace/IIInd Additional and District and Sessions Judge, Ghotki, by filing in Criminal Misc. Application No.193 of 2023, which was allowed vide impugned order an excerpt of the order is reproduced as under:-

"I have patiently heard the learned counsel for applicant, learned DDPP and also have gone through the material available on record. From the careful perusal, it transpires that the subject cheque bears the name of proposed accused as the account holder, who apparently seems to have issued the same to the applicant, which upon presentation, has been dishonored by the bank. The report of District Complaint Redressal Center Ghotki is also in favour of applicant. Thus, sufficient material is available on record which prima facie, supports the version of applicant. Consequently, the respondent No. 01 is directed to record the statement of applicant and if, from his statement, a cognizable offence is made out, such FIR be registered in accordance with law. Accordingly, instant application stands allowed."

1. Mr. Akhtar Hussain Malik learned counsel for the applicant has argued that that the first information report ("FIR") under the Criminal Procedure Code cannot be registered against the applicant a borrower of the loan based on interest, which are within the exclusive jurisdiction of civil court under recovery proceedings and the local police had no jurisdiction to register a criminal case on the application of the respondent-complainant.

2. On the other hand, Mr. Muhammad Tariq Panhwar learned counsel for the private respondent submits that cognizable offence was/is made out from the contents of the application of the complainant since the cheque(s) had been given by the applicant with the intent to defraud the complainant and has defended the order passed by the Justice of Peace and submits that dishonoring of a cheque(s) is a cognizable offence in terms of Section 489-F P.P.C and that there are only two things that an S.H.O. has to see in terms of Section 154 Cr.P.C. and these are that an application conveying certain information is placed before him and that the information pertains to commission of a cognizable offence. He submits that there are no other considerations statutorily prescribed for the registration of FIR and it is legal anathema to read words into a statute. At this stage the counsel for the applicant has refred to the statement of the applicant wherby it is shown that the private respondent has lodged dozens of the FIRs against the persons to whom he provided loan on interest and after keeping them in jail he used to pressurize them to pay interest on principal amount which is illegal action on his part in terms of new legislation.

2025 P Cr. L J 1597

[Sindh]

Before Jan Ali Junejo, J

Mst. Moeena---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 133 of 2025, decided on 7th March, 2025.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(1), Sr. No.3(c)---Possession of narcotic substances---Bail, refusal of---Allegations against the accused-applicant was that 1050-grams charas was recovered from her possession--- Record revealed that the applicant was apprehended red-handed and a substantial quantity of contraband (1,050 grams of charas) was recovered from her immediate possession---Applicant had not been able to establish any enmity or ill-will of the police to justify her false implication---Absence of private witnesses did not per se invalidate the recovery, as the Police Officers were competent witnesses under the law---Quantity squarely fell within the ambit of S.9(1), Sr. No. 3(c) of the Control of Narcotic Substances Act, 1997 (as amended in 2022), which prescribed a punishment of imprisonment extending up to fourteen years but not less than nine years, in addition to a fine ranging from a minimum of eighty thousand rupees to a maximum of four hundred thousand rupees---Offence in question fell within the prohibitory clause of S.497(1),Cr.P.C, thereby precluding the applicant/accused from claiming bail as a matter of right or concession---Plea of medical illness did not, by itself, justify the grant of bail, especially in cases involving serious narcotic offences---Applicant had failed to make out a case for further inquiry under S.497(2),Cr.P.C.---Given the prima facie evidence, the serious nature of the offence, the huge quantity of contraband recovered and the lack of reasonable grounds for further inquiry, the applicant had not been able to make out a case for bail---Serious nature of the allegations and the severity of the potential punishment further eliminated any presumption in favour of granting bail---Consequently, bail application was accordingly dismissed.

Noor Khan v. The State 2021 SCMR 1212 and Dolat Khan v. The State and others 2016 SCMR 1447 rel.

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

----S. 497---Bail---Observations of the Court---Scope---Observations made in the bail order are limited to the bail proceedings and shall not impact or prejudice the merits of the case during the trial.

Ghulam Asghar Khuhro for Applicant.

Mumtaz Ali Shah, Assistant Prosecutor General for the State.

Date of hearing: 7th March, 2025.

Order

Jan Ali Junejo, J.---The present Criminal Bail Application has been filed on behalf of the Applicant/Accused, who is seeking post-arrest bail in connection with a case stemming from FIR No.1322 of 2024, registered at P.S. Site Superhighway Industrial Area (SSHIA), Karachi, under Section 9(1)(3-c), of the Control of Narcotic Substances Act, 1997 (amended in 2022). The Applicant/Accused initially approached the learned Sessions Court by filing Bail Application No.01 of 2025, which was subsequently dismissed by the Court of the learned Ist. Additional Sessions Judge, Malir, Karachi, vide Order dated 06.01.2025.

1. The facts relevant to the present criminal bail application are as follows:

"Complainant SIP Abbas Ali Siyal, along with his team, was patrolling in a government vehicle when they reached House No. 115 in Dhani Bux Goth at approximately 05:45. They noticed a woman, Mst. Moina wife of Muhammad Rafeeq, behaving suspiciously. With the assistance of LPC Rabia Razzaq, they apprehended her. Due to the absence of private witnesses, the subordinates were made witnesses. Upon searching the accused, a white plastic bag containing 1,050 grams of Charas wrapped in tape was recovered from her right hand. Additionally, Rs. 450 in cash was found in her left hand. The contraband was seized, sealed on the spot, and taken to the police station along with the lady accused. An FIR was registered under Section 9(1) (3-c) of the Control of Narcotic Substances Act, 1997.

1. The learned counsel for the Applicant has argued that this is the first bail application filed on behalf of the accused lady and no prior application has been made. He further argues that the accused is innocent and has been falsely implicated by the complainant with mala fide intentions. He submits that the incident allegedly took place in a populated residential area, yet no independent private witness was associated with the arrest and recovery, which is a clear violation of Section 103 Cr.P.C, making the case fit for further inquiry. He also argues that no seller or purchaser was arrested at the spot, raising doubts about the prosecution's case. He points out that the alleged contraband was neither sent for chemical examination nor sealed separately at the spot, and the FIR lacks specific details such as shape, color, and number of pieces of the recovered contraband, making the prosecution story suspicious and concocted. He contends that no direct or indirect evidence connects the accused to the crime, and she suffers from serious medical conditions such as diabetes and asthma, requiring regular treatment, but has been falsely implicated by the police at the behest of a land mafia intending to usurp her property. He further argues that nothing was actually recovered from the accused's possession, and she has no prior criminal record, making her entitled to the concession of bail.

2025 P Cr. L J 1601

[Sindh]

Before Muhammad Saleem Jessar and Adnan-ul-Karim Memon, JJ

NaveeN Jatoi---Petitioner

Versus

Province of Sindh and others---Respondents

Civil Petitions Nos. D-2026 and D-128 of 2025, decided on 17th May, 2025.

Criminal Procedure Code (V of 1898)---

----S.154---Constitution of Pakistan, Art. 199---Quashing of FIRs---Constitutional jurisdiction of High Court---Scope---Petitioner not named in the FIRs for which quashment sought ---Petitioner in instant case was the wife of accused against whom the FIRs, sought to be quashed, had been registered---From bare perusal of impugned FIRs, it seemed to be an admitted position that the petitioner had not been named and/or nominated in those FIRs, nor during investigation conducted after registration of said FIRs, she had been involved in any manner in those cases---Petitioner was not an aggrieved person to seek quashing of the FIRs---Admitted position was that investigation in the impugned FIRs had already been completed and charge sheet/challan under S.173, Cr.P.C., had been submitted before the concerned Court and cognizance had been taken by the Trial Court---In such circumstances, it did not seem to be proper to quash the FIRs, rather it was for the Trial Court to determine the fate of the case---Noteworthy that prayers seeking injunction/restraint orders with regard to criminal proceedings were hit by the provisions of S.56(e) of the Specific Relief Act, 1877, which laid down that an injunction could not be granted to stay proceedings in any criminal matter---Such conduct of petitioner was not appreciable and it was appropriate that separate petitions should have been filed for quashing of each FIR---Of course, had all the impugned FIRs been the result of one and the same incident, the situation would have been different but, in instant case all three impugned FIRs were lodged in respect of three different incidents, that too lodged in different police stations on different dates and times---On that score too, the petition did not seem to be maintainable---Even otherwise, consequent determination of the guilt or innocence of an accused fell within the domain of the Trial Court and that resort to the provisions of S.561-A, Cr.P.C., or to the provisions of Art. 199 of the Constitution seeking quashing of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and exceptional cases---Petition was dismissed, in circumstances.

Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657; Khalid Safdar Makhdoom v. Government of the Punjab through Secretary Specialized Healthcare and Medical Education Department and 8 others 2023 PCr.LJ 1373 and Director-General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 ref.

Director-General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401; National Petrocarbon (Pvt.) Ltd. and 2 others v. Registrar of Trade Unions and 6 others 1989 CLC 1975; National Accountability Bureau Chief Executive Secretariat Constitution Avenue Islamabad and 2 others v. Mst. Zahida Sttar and 2 others PLD 2001 Kar. 256 rel.

Muhammad Omer Soomro, Abdul Haseeb Qazi, Irshad Ahmed Jatoi, Najiullah Siddiqui, Abdul Qadoos Jatoi and Fiza Chaudhri, Advocates along with Accused Ghulam Murtaza Jatoi, nominated accused in impugned FIRs for Petitioner.

Muntazir Mehdi, Acting Prosecutor General, Sindh along with Muhammad Iqbal Awan, Addl. Prosecutor General Sindh and Hakim Ali Shaikh, Addl. Advocate General, Sindh as well as Sagheer Ahmed Abbasi, Assistant Advocate General, Sindh along with Muhammad Zaman Awan, Circle Officer, ACE, Naushero Feroze, Pannah Shah, DSP (Legal) Dadu, P.I Muhammad Qasim and SI Faiz Ali of P.S Darakhshan, Karachi and Muhammad Yousuf, Deputy Superintendent on behalf of I.G Prison, Karachi (present in Court) for Respondents.

Dates of hearing: 20th, 27th February, 13th March, 24th April and 17th May of 2025.

Judgment

Muhammad Saleem Jessar, J.---Through this petition, petitioner Naveen Jatoi, wife of Ghulam Murtaza Khan Jatoi (the alleged accused), has approached this Court seeking quashment of three FIRs; viz. FIR No. 02 of 2025 registered at Police Station Dokri, FIR No. 09 of 2025 registered at Police Station Badah, and FIR No. 17 of 2025 registered at Police Station Hingorja (District Khairpur Mirs), lodged against her husband. In the petition she has sought for following reliefs:

i. Declare the arrest and detention of Ghulam Murtaza Jatoi to be illegal and without any lawful grounds and violation of his fundamental rights.

ii. Suspend three (3) FIRs, i.e., FIR No.02/2025 (PS. Dokri), FIR No.09/2025 (P.S. Badalt), both filed in District Larkana, and FIR No.17/2025 (P.5. Hingorja), in District Khairpur, presently known to the Petitioner, in terms of the previous Orders of this Hon'ble Court dated 01.04.2024 and 22.11.2024 made in C.P. D-1655 of 2024.

iii. Restrain the Respondents from registering any further FIRs or arresting Ghulam Murtaza Jatoi and his family members without prior permission of this Court, in terms of the previous Orders of this Court dated 01.04.2024 and 22.11.2024 made in C.P. D-1655 of 2024.

iv. Order release of Ghulam Murtaza Jatoi from unlawful custody.

v. Quash the three (3) FIRs, ie, FIR No. 02/2025 (P.S. Dokri), FIR No.09/2025 (P.S. Badah), both filed in District Larkana, and FIR No.17/2025 (P.S. Hingorja), in District Khairpur, presently known to the Petitioner.

vi. Direct the Respondents to provide complete details before this Court of all/any cases, FIRs, complaints (if any) registered against the Petitioner.

vii. Restrain the Respondents from registering any further FIRs against Ghulam Murtaza Jatoi and his family members.

viii. Restrain the Respondents from arresting Ghulam Murtaza Jatoi and his family members in any other FIRs without laying information before this Court and seeking permission from this Court for arrest or otherwise.

ix. Restrain the Respondents from illegally and unlawfully raiding the residences of Ghulam Murtaza Jatoi and his family members and further not to harass, threat, pressurize or coerce Ghulam Murtaza Jatoi and his family members in any manner.

x. Any other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case.

1. Instant petition was filed at Circuit Court, Larakana on 20.02.2025 and it was numbered as C.P. No.D-128 of 2025. On the same day notices were issued to Additional A.G., Additional P.G. as well as the respondents for 13.03.2025 and it was ordered that if the petitioner's husband has not been arrested in the three impugned FIRs, he shall not be arrested. The respondents were also directed to submit complete records / details of the said FIRs. Thereafter, the petitioner moved Misc. Applications praying therein for immediate suspension of the 14 days' judicial remand of petitioner's husband Ghulam Murtaza Jatoi, his immediate release and initiation of contempt proceedings for violating Court's aforesaid order dated 20.2.2025. Vide order dated 27.2.2025 notices were issued to the alleged contemnors except contemnor No.9 i.e. Abdul Waheed Abbasi, Civil Judge and Judicial Magistrate, Sukkur-III to explain as to why contempt proceedings should not be initiated for willfully violating aforesaid Court's order. The operation of remand order in Crime No.17/2024 passed by Judicial Magistrate, Sukkur was also suspended, so also registration of any further FIR against petitioner's husband was stopped. On 13.03.2025 the respondents / alleged contemnors appeared in the Court and filed their respective compliance reports and statements which were taken on record. The case was adjourned to 24.04.2025 and the I.Os of the impugned FIRs were directed to submit reports under Section 173 Cr.P.C. in case the investigation has been completed.

2. On 24.04.2025, comments were filed on behalf of respondents Nos.6, 7 and 8. Learned Addl. A.G. and Addl. P.G. submitted that challans have been submitted in all the cases / crimes before the concerned courts, therefore, according to them, the purpose of instant petition stood served in view of the dicta laid down by Honourable Supreme Court in the case of Director-General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others reported in PLD 2013 SC 401, hence the petition has become infructuous. However, as the counsel for the petitioner was not in attendance, as such the case was adjourned to 08.5.2025. On the said date one of the members of the Division Bench which was hearing the petition (Nisar Ahmed Bhambhro, J.) showed his inability to hear the instant petition. In the circumstances, it was ordered that since this is a part-heard matter and was previously heard by a Bench comprising, Mohammad Saleem Jessar, J. and Adnan-ul-Karim Memon, J. and as at that time, the latter was holding sitting at Karachi, therefore, the Office was directed to send instant petition to the Principal Seat of this Court at Karachi for placing the same before Honourable Chief Justice and the Head of Constitution Benches for passing appropriate orders. Accordingly, the said order was complied with by the office and new number i.e. C.P. No. D-2026 of 2025 (KHI) was allotted.

3. On 17.05.2025 when the matter was fixed before us at the Principal Seat of Karachi, the matter was argued by the learned counsel for the petitioner as well as learned Acting Prosecutor General assisted by Addl. P.G. and Additional Advocate General on behalf of State / Official Respondents. As regards the question of maintainability which was raised on the very first day i.e. 20.2.2025, as to how the petition in hand is maintainable, more particularly when the petitioner is not directly charged or named in any impugned FIRs, learned counsel for the petitioner submitted that being wife of the accused, she could be termed as attorney and therefore, as an attorney, she is competent to proceed and file the case on behalf of directly aggrieved party. Learned counsel placed reliance upon the cases of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657) and Khalid Safdar Makhdoom v. Government of the Punjab through Secretary Specialized Healthcare and Medical Education Department and 8 others (2023 PCr.LJ 1373).

4. Learned counsel further submitted that prior to filing this petition, the accused Ghulam Murtaza Jatoi had filed C.P No. D-1655 of 2024 before this Court, wherein, by order dated 01.04.2024, protection was granted to him against any kind of harassment and it was also directed that if any FIR were to be registered against him, prior information should first be laid before this Court. In support of his contention, learned counsel filed statement dated 17.05.2025 annexing therewith a set of orders passed by learned Division Bench of this Court in C.P No. D-1655 of 2024 which were taken on record. He; however, when confronted with the legal position that the cases have already been investigated and reports under Section 173 Cr.P.C. have been submitted by the police/I.Os before the Courts having jurisdiction, conceded that the purpose of this petition, in view of the dicta laid down by the Hon'ble Apex Court in the case of Director-General Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 SC 401), has been served. Therefore, he sought disposal of this petition by submitting that the official respondents may be directed not to cause any kind of harassment to the petitioner or her family. Learned counsel for the petitioner further submitted that in exercise of powers vested under Article 199 of the Constitution, this Court can quash FIRs and proceedings registered/initiated against the husband of the petitioner and there is no necessity to approach the trial court by filing application under section 249-A or 265-K. Cr.P.C. As per learned counsel, the cases were registered against the husband of the petitioner with mala fide intention to cause humiliation and harassment and to involve him in the false criminal cases as many as possible to compel him to bow-down before the illegal wishes of the ruling political party, therefore it is a fit case in which the husband of the petitioner may be discharged from the charges levelled against him, which are based on political rivalry. Learned counsel next submitted that when evidence of mala fide actions is readily apparent, this court can intervene. Learned counsel lastly prayed for allowing instant petition.

5. Conversely, learned law officers present, raised objection to the maintainability of this petition on the ground that petitioner, not being an accused or nominated in any of the impugned FIR(s), is not competent to seek its quashment. According to them, as far as, her husband/the alleged accused is concerned, consequent upon orders having been passed by this Court, he has been released and is on bail; hence, now best course for him is; to approach the Courts where the cases against him have been filed and/or pending adjudication. As far as contention of learned counsel for the petitioner that after submission of reports in terms of Section 173 Cr.P.C, the Magistrates/Courts have not taken cognizance of the offences; as such, the accused is unable to approach or appear before the Courts for appropriate relief. They submitted that since the investigation in all the cases has been completed and reports in terms of Section 173 Cr.P.C. have also been submitted before the Courts having jurisdiction; hence, the Courts have to determine the accusation against him by accepting the reports or declining the same; however, in both of the situations, the purpose of instant petition, particularly to the extent of prayers seeking quashment of impugned FIRs, in view of the dicta laid down by learned Apex Court in the case of Director General Anti-Corruption Establishment, Lahore and others (supra), has been served. Therefore, the accused husband of the petitioner is required to approach the Courts below where after completion of the investigation, reports in terms of Section 173 Cr.P.C. have been submitted. The Law Officers further submitted that any adverse order or certain observations of the Courts below would be a fresh cause of action and the accused in such an eventuality can approach the proper forum for seeking appropriate reliefs, strictly in accordance with law.

6. The Law Officers further submitted that an individual may press one petition for a single quashment and quashment of multiple FIRs cannot be sought or granted in one petition, as is embodied under Sindh Chief Court Rules. Moreover, the petitioner though is the wife of accused, is not competent or aggrieved person to seek quashment of impugned FIRs; hence, on this score alone, petition cannot be entertained. However, the law officers undertook that they will direct the official respondents not to cause any kind of harassment to the petitioner or her family except in accordance with due course of law.

7. The Law Officers further submitted that under the provisions of the Specific Relief Act, 1877, any state functionary(ies) cannot be restrained from registering criminal cases against an accused who has committed a cognizable offence; hence, if any individual or the party is given such protection in the constitutional petition, it will be violative and in contravention of the provisions of the Specific Relief Act, 1877, as the complainant/victim has also got constitutional protection which cannot be denied. According to them, this court cannot interfere with ongoing investigations and should allow the legal process to proceed. According to them, since the petitioner has been released from the prison and is now present before this court, the primary issue raised in this petition has been resolved and the purpose for filing this petition is fulfilled, and no further action, including contempt proceedings, needs to be taken by this court.

8. We have taken into consideration the submissions made by learned counsel for the petitioner as well as learned Law Officers appearing for the State / official respondents and perused the material available on record.

9. It may be observed that the petitioner in instant case is the wife of accused against whom the FIRs, sought to be quashed, have been registered. From bare perusal of impugned FIRs, it seems to be an admitted position that the petitioner has not been named and / or nominated in these FIRs, nor during investigation conducted after registration of said FIRs, she has been involved in any manner in these cases. In the circumstances, on the face of it, she is not an aggrieved person to seek quashment of the FIRs. In this connection, reference may be made to an unreported case of Mst. Sadori in C.P. No.D-694 of 2020 which by Order dated 16.7.2020 was decided by a Division Bench of this Court. The judgment in said case was authored by one of us (Adnan-ul-Karim Memon, J.) wherein it was held that the petitioner, who was sister of the two accused persons and was not herself nominated or involved in the case, had no locus standi to maintain the constitutional petition for quashment on behalf of her brothers / accused. The relevant portion from the judgment is reproduced as under:

"2. We asked learned Counsel to satisfy this Court with regard to maintainability of instant petition on the premise that the petitioner is not an aggrieved person as the aforesaid FIR has been lodged against the brothers of the petitioner and not from any of the accused has approached for quashment of FIR, he replied that petitioner, being sister, may approach this Court for quashment of aforesaid FIR, as the same is based on concocted/false story."

Ultimately, the petition was dismissed, inter alia, holding as under:

"Even otherwise, the petitioner lacks locus standi in the matter. This petition being non-maintainable and without any merits is hereby dismissed."

In view of above legal position, the petitioner is not competent to maintain instant petition.

1. It is also an admitted position that investigation in the impugned FIRs has already been completed with and charge sheet / challan under Section 173 Cr.P.C. has been submitted before the concerned Court and cognizance has been taken by the trial Court. In such circumstances, it does not seem to be proper to quash the FIRs, rather it is for the trial Court to determine the fate of the case. In the case of Director-General, Anti-Corruption Establishment, Lahore and others (supra), Honourable Supreme Court has dealt with this legal point and held as under:

"Apart from that the impugned order had been passed by the learned Judge-in-Chamber of the Lahore High Court, Lahore at a time when a Challan in the relevant criminal case had already been submitted before the learned trial court and the learned Trial court had already taken cognizance of the case. The law is quite settled by now that after taking of cognizance of a case by a trial court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction."

On the basis of such legal position too, instant petition appears to be non-maintainable.

1. It is also noteworthy that prayers seeking injunction / restraint orders with regard to criminal proceedings are hit by the provisions of Section 56(e) of the Specific Relief Act, 1877 which lays down that an injunction cannot be granted to stay proceedings in any criminal matter. Superior Courts have also laid down such dictum. In this connection, reference may be made to the case of National Petrocarbon (Pvt). Ltd. and 2 others v. Registrar of Trade Unions and 6 others, reported in 1989 CLC 1975 [Karachi], wherein it was held as under:

"9. The proposition that no injunction can be granted to stay proceedings in any criminal matter as is provided under section 56 clause (e) is well settled. In the famous book of Spelling on Injunction in Article 24 it has been observed that "Equity has no jurisdiction to interfere for the prevention of crime or to enforce moral obligation nor will it interfere for the prevention of illegal acts merely because they are illegal." In Boorewala Textile Mills v. Zeenat Textile Mills reported in PLD 1978 Lah. 305 it was held that grant of stay order with respect to stolen property subject-matter of revision, having effect of stay of criminal proceedings, cannot be granted in view of prohibition under section 56(e), Specific Relief Act. In AIR 1942 Mad. 756 re N.P. Essappa Chettiar it was held that in view of the provisions of section 56(e), Specific Relief Act a civil Court cannot stay the criminal proceedings by preventing the Court or the complainant from continuing the proceedings by issuing an injunction."

1. Reference can also be made in this context to the case of National Accountability Bureau Chief Executive Secretariat Constitution Avenue Islamabad and 2 others v. Mst. Zahida Sattar and 2 others, reported in PLD 2001 Kar. 256, wherein a Division Bench of this Court held as under:

"Next it would be seen that Section 56-E of the Specific (Relief) Act specifically enjoins that an injunction cannot be granted to stay proceedings in any criminal matter………. Consequently, we are of the opinion that embarking upon an inquiry as to the ostensible ownership of the properties and the source of money would be in violation of Section 56-E of the Specific Relief Act, which particularly prohibits grant of any injunction to stay proceedings in a criminal matter. Reference in this connection can be made to National Petrocarbon (Pvt.) Ltd. and 2 others v. Registrar of Trade Unions and 6 others (1989 CLC 1975) and Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd., Lyallpur and 2 others (PLD 1978 Lahore 305)."

1. Besides above, it seems that the petitioner by means of instant single petition has sought quashment of three FIRs viz FIR No. 02 of 2025 registered at Police Station Dokri, FIR No. 09 of 2025 registered at Police Station Badah, and FIR No. 17 of 2025 registered at Police Station Hingorja, Needless to emphasize that such conduct is not appreciable and it was appropriate that separate petitions should have been filed for quashment of each FIR. Of course, had all the impugned FIRs been the result of one and the same incident, the situation would have been different but, as stated above, in instant case all three impugned FIRs were lodged in respect of three different incidents, that too lodged in different police stations on different dates and times. On this score too, the petition does not seem to be maintainable.

2. Even otherwise, now it is well settled that consequent determination of the guilt or innocence of an accused falls within the domain of the trial Court and that resort to the provisions of section 561-A, Cr.P.C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and exceptional cases. For this view, we are fortified by the judgment pronounced by Honourable Supreme Court in the case of Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others, reported in PLD 2006 SC 598, wherein it was held:

2025 P Cr. L J 1633

[Sindh (Hyderabad Bench)]

Before Riazat Ali Sahar, J

Hakim Ali---Appellant

Versus

The STate---Respondent

Criminal Appeal No. S-254 of 2019, decided on 14th April, 2025.

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

----Ss. 354-A & 504---Assault or use of criminal force to woman and stripping off her clothes, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Actual date of occurrence not certain---Accused was charged for assaulting the daughter of the complainant and stripping off her clothes and in that condition exposing her to the public view due to the refusal of her marriage with the accused---Complainant, who was the father of victim, stated that the incident took place about twenty days prior to the lodging of the FIR---Complainant deposed that on the day of the occurrence, he was accompanied by his two daughters and upon reaching a Mohalla around 11:00 a.m., they encountered the accused, who demanded hand of victim in marriage---Upon refusal of complainant, the accused allegedly became enraged, abused and grappled with him, and when victim intervened, tore her shirt at the breast, thereby exposing her---Complainant further stated that people gathered upon their cries, the accused fled, and a complaint was made to the nekmard before the FIR was lodged on12.05.2019---Daughter of the complainant corroborated that version but vaguely mentioned that the incident took place about five months ago, which was inconsistent with the time stated by the complainant---Victim also supported the same chain of events but estimated the time of occurrence as about four to five months ago, thus adding to the uncertainty regarding the actual date of occurrence---Delay in lodging the FIR, the discrepancy in the timeline as stated by each witness and the absence of any independent witness despite the alleged crowd gathering at the spot collectively created reasonable doubt in the prosecution's story---Appeal against conviction was allowed, in circumstances.

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

----Ss. 354-A & 504---Assault or use of criminal force to woman and stripping off her clothes, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Inconsistencies and contradictions in the statement of witnesses---Accused was charged for assaulting the daughter of the complainant and stripping off her clothes and in that condition exposing her to the public view due to the refusal of her marriage with the accused---Complainant admitted during cross-examination that although he alleged that the accused had demanded his daughter's hand in marriage several days before the incident, that crucial fact was never disclosed to the police or mentioned in the FIR---Complainant also acknowledged that there was no specific location described in the FIR where the incident took place, despite the alleged scene being in a populated area---Complainant further conceded that all the witnesses were his own family members and no independent or impartial witness was produced, even though he claimed that 10-12 people had gathered at the scene---Moreover, complainant did not report the incident promptly and only lodged the FIR after an unexplained delay, during which time the alleged torn shirt was produced without any verification of ownership or condition---Importantly, he denied the defense suggestion regarding financial dispute but did not refute the accused's proximity to their residence, nor did he provide clear justification for the delay in reporting such a serious offence---Eye-witness, in her cross-examination, also admitted that the names of any independent witnesses who allegedly gathered at the scene were not given to the police---Said witness too confirmed the close proximity of the accused's residence to their own, further raising questions about the sudden hostility without prior indication---Victim introduced further contradictions by stating the incident persisted over a period of two months, contrary to the accounts of a single event provided by her father and sister---Victim also admitted that the accused was a relative and their families were on visiting terms, which the other witnesses had denied, thereby creating further inconsistency---Victim's testimony regarding the shirt, including the lack of any purchase record, her denial of wearing a brazier and the omission of the shirt's color in her statement, left uncertainty regarding the very object that allegedly corroborated the incident---Victim, too, could not explain why no outsiders were named as witnesses despite asserting a public uproar---Collectively, these discrepancies, contradictions and omissions in the cross-examinations, especially regarding the timeline, the nature and ownership of the torn shirt, the absence of independent witnesses and the relationship dynamics between the parties, rendered the prosecution's case doubtful---Appeal against conviction was allowed, in circumstances.

Zaffar v. The State 2018 SCMR 326 and Mst. Shazia Parveen v. The State 2014 SCMR 1197 rel.

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

----Ss. 354-A & 504---Assault or use of criminal force to woman and stripping off her clothes, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Delay of 20-days in lodging the FIR---Consequential---Accused was charged for assaulting the daughter of the complainant and stripping off her clothes and in that condition exposing her to the public view due to the refusal of her marriage with the accused---Incident allegedly occurred about 20 days prior to the lodging of the FIR---No plausible explanation had been provided for such a long and unexplained delay, especially in a case involving alleged outrage of modesty of a minor girl, which was inherently sensitive---Claim that the complainant approached nekmards for a resolution appeared to be an afterthought and was unsupported by any independent witness---Appeal against conviction was allowed, in circumstances.

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

----Ss. 354-A & 504---Assault or use of criminal force to woman and stripping off her clothes, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Medical evidence not available---Accused was charged for assaulting the daughter of the complainant and stripping off her clothes and in that condition exposing her to the public view due to the refusal of her marriage with the accused---Despite claims that the minor victim's shirt was torn and her body exposed, no medical examination, report, or psychological evaluation was conducted or presented---Moreover, there was no injury report, which would normally be expected even in minor scuffles, particularly involving a minor girl---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance raising a reasonable doubt in the mind of a prudent person regarding the guilt of the accused would be sufficient for granting such benefit---Benefit is not to be extended as a matter of grace or concession, but as a matter of right.

Muhammad Hassan and another v. The State 2024 SCMR 1427 and Mohammad Mansha v. The State 2018 SCMR 772 rel.

Razzaque Rahim Shaikh for Appellant.

Siraj Ahmad Bijarani, Assistant Prosecutor General Sindh for the State.

Javed Ali Buriro for the Complainant.

Date of hearing: 24th March, 2025.

Judgment

Riazat Ali Sahar, J.--- Through instant criminal appeal, the appellant has challenged judgment dated 29.08.2019 passed by learned Additional Sessions Judge, Sehwan in Sessions Case No.141 of 2019 emanating from crime No.74/2019 registered at PS Sehwan for the offences punishable under sections 504, 354-A P.P.C., whereby the appellant was convicted for offence punishable under section 354-A P.P.C. and sentenced to Imprisonment for Life and to pay fine of Rs.50,000/- (Fifty thousand); in case of failure, he shall have further undergo S.I for three months more. The appellant was also convicted for the offence punishable under section 504 P.P.C. and sentenced to suffer S.I for six months with fine of Rs.2000/- (Two thousand), which in case of failure, he was ordered to further undergo S.I for one month more. Both sentences were ordered to run concurrently. However, the appellant was extended benefit of section 382-B Cr.P.C.

1. The brief facts of the case are that the complainant namely Baboo on 12.05.2019 reported the case with the Police Station Sehwan stating that the appellant had demanded the hand of his daughter Sona aged about 13/14 years from him but he refused due to tender age of his daughter, as such appellant/accused was annoyed with complainant. The complainant has further alleged that about 20 days prior to lodging of FIR complainant along with his daughters Sumera and Sona left for Shahi Bazaar, Sehwan for some work and when at about 11:00 am, reached at common street near Sabz Haveli, Makrani Mohalla, Sehwan, appellant/accused Hakim Ali intercepted them and demanded the hand of Sona, but the complainant refused. The appellant/accused abused the complainant party and assaulted to Mst. Sona and strips her clothes and in that condition exposed to the public view. The complainant raised cries which attracted nearby people, who came running and on seeing them accused ran away. The complainant made such complaint before nekmard who kept the complainant on hopes and ultimately refused, as such, the complainant lodged instant case.

2. After completion of the usual investigative process, a final report was submitted before the learned Judicial Magistrate. The Judicial Magistrate took cognizance of the matter and committed the case to the Court of Sessions. The Sessions Court subsequently entrusted the case to the learned trial Court for adjudication. A formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial. The trial commenced, and the prosecution examined a total of five (05) witnesses in support of its case:

· PW-1: Complainant Baboo, who produced a copy of the First Information Report (FIR).

· PW-2: Mst. Sumera.

· PW-3: Alleged victim, Sona.

· PW-4: Mashir Shoukat, who produced memos relating to:

o Recovery of the torn shirt;

o Inspection of the scene of occurrence (vardat);

o Arrest of the appellant.

· PW-5: Investigating Officer ASI Muhammad Ishaque, who produced copies of roznamcha (daily diary) entries Nos. 19, 25, 06, 15, and 18.

1. An opportunity was given to the appellant to give his explanation regarding the prosecution case by recording his statement under Section 342 Cr.P.C. wherein he denied the prosecution allegations and claimed his innocence. The appellant also stated that he has been falsely implicated due to demand of five lac from complainant given to him as loan. After completion of the trial, the learned trial Court pronounced the conviction and sentences as mentioned above.

2. Learned counsel for the appellant has contended that there are material contradictions and discrepancies in the evidence of the prosecution witnesses, particularly those of the complainant PW-1 Baboo, PW-2 Mst. Sumera and PW-3 Mst. Sona and such contradictions weaken the credibility of the prosecution's case and suggest that the incident may not have occurred in the manner as alleged. He further contended that despite the complainant claiming that nearby people came running to the scene upon hearing the cries; however, there are no independent eye-witnesses to corroborate the incident and the absence of any neutral or independent witness seriously casts doubt on the truthfulness of the prosecution's case. He has further contended that there was an unexplained delay in lodging the FIR, which raises questions about the genuineness of the complaint. He has contended that such delays are indicative of the possibility of concoction of facts after the alleged incident. The learned counsel for the appellant has invited attention of the Court on the point that there is no medical evidence to substantiate the allegations of assault and exposure, especially since the complainant failed to get the victim Mst. Sona immediately examined medically after the incident and such absence of medical examination casts serious doubt on the credibility of the allegations. In addition to the claim of a personal dispute over the loan, the learned counsel has contended that the appellant has been falsely implicated in the case due to malicious intentions on the part of the complainant; otherwise, the appellant has no criminal background, and his involvement in the case is merely a result of a fabricated accusation. He has further contended that there is insufficient evidence to prove that the appellant intentionally stripped the victim Mst. Sona or exposed her in public and the prosecution has not provided convincing evidence to substantiate these critical elements of the offence under Section 354-A, P.P.C. Learned counsel has further contended that the prosecution has failed to establish the appellant's guilt beyond a reasonable doubt despite the evidence presented by the prosecution, including the testimonies of the victim and the complainant, and it is not reliable and does not meet the legal standard required for conviction for the offence under Sections 504 and 354-A, P.P.C. Lastly the learned counsel for the appellant prayed that the conviction and sentence passed by the trial court be set aside which is based on shaky and unreliable evidence and as such, the principles of justice and fairness demand that the appeal be allowed and by extending the benefit of the doubt, the appellant be acquitted of all charges.

3. On the other hand, learned A.P.G. for the State, assisted by the learned counsel for the complainant, contended that the prosecution has proved the appellant's guilt beyond reasonable doubt through consistent and reliable evidence of complainant, Mst. Sona, and other witnesses, supported by corroborative physical evidence, including the torn shirt of the victim and arrest memos. He has further contended the claim of appellant regarding his false implication due to a loan dispute, is false but it is only his defence plea otherwise it is imaginary. The learned counsel for the complainant emphasized the severity of the actions of the applicant, particularly the public humiliation of the victim, and the psychological trauma suffered by the minor victim. Both the A.P.G. and the counsel for the complainant stress that the appellant's assault and public exposure of the victim under Sections 504 and 354-A P.P.C. are grave offences that demand appropriate punishment. They urged the court to uphold the conviction and dismiss the appeal.

4. I have heard the arguments of learned counsel for the appellant, learned A.P.G. for the State, learned counsel for the complainant, perused the record minutely. In the instant case, the prosecution has alleged that the appellant stripped the victim and exposed her to public view, due refusal of her marriage with the appellant by her father, as such, the appellant has been booked in the instant case; however, the defence pleas of the appellant is that when he demanded the loan of Rs.500,000/- given to the complainant by him, he concocted this story in order to involve the appellant falsely. In this regard, all three witnesses namely, the complainant, his daughter Sumera, and the victim Sona have deposed in support of the incident; however, their testimonies reflect certain inconsistencies and delays, which cast doubt on the prosecution's case. The complainant, who is the father of Sona, stated that the incident took place about twenty days prior to the lodging of the FIR. He deposed that on the day of the occurrence, he was accompanied by his daughters Sona and Sumera to Shahi Bazar, Sehwan, and upon reaching Sabz Haveli Makrani Mohalla around 11:00 a.m., they encountered the accused Hakim Makrani, who demanded hand of Sona in marriage. Upon his refusal, the accused allegedly became enraged, abused and grappled with him, and when Sona intervened, tore her shirt at the breast, thereby exposing her. He further stated that people gathered upon their cries, the accused fled, and a complaint was made to the nekmard before the FIR was lodged on 12.05.2019. Sumera, the daughter of the complainant, corroborated this version but vaguely mentioned that the incident took place about five months ago, which is inconsistent with the time stated by the complainant. Her narration of the incident was otherwise similar, including the demand for marriage, abuse, grappling, and tearing of Sona's shirt. She too confirmed that the matter was taken to the nekmard without result and that the FIR was later registered. Sona, the victim, also supported the same chain of events but estimated the time of occurrence as about four to five months ago, thus adding to the uncertainty regarding the actual date of occurrence. She similarly described the accused demanding her hand, reacting aggressively on refusal, grappling with her father, and tearing her shirt when she intervened. The delay in lodging the FIR, the discrepancy in the timeline as stated by each witness, and the absence of any independent witness despite the alleged crowd gathering at the spot collectively create reasonable doubt in the prosecution's story.

5. On careful consideration of the cross-examination of all three prosecution witnesses, the complainant, his daughter Sumera, and the alleged victim Sona, there appears material inconsistencies, omissions, and contradictions, which materially shake the credibility of the prosecution's version and entitle the accused to the benefit of doubt. The complainant admitted during cross-examination that although he alleged the accused had demanded his daughter's hand in marriage several days before the incident, this crucial fact was never disclosed to the police or mentioned in the FIR. He also acknowledged that there is no specific location described in the FIR for where the incident took place, despite the alleged scene being in a populated area. He further conceded that all the witnesses are his own family members, and no independent or impartial witness was produced, even though he claimed that 10-12 people had gathered at the scene. Moreover, he did not report the incident promptly and only lodged the FIR after an unexplained delay, during which time the alleged torn shirt was produced without any verification of ownership or condition. Importantly, he denied the defense suggestion regarding a financial dispute but did not refute the accused's proximity to their residence, nor did he provide clear justification for the delay in reporting such a serious offence. PW Sumera, in her cross-examination, also admitted that the names of any independent witnesses who allegedly gathered at the scene were not given to the police. She too confirmed the close proximity of the accused's residence to their own, further raising questions about the sudden hostility without prior indication. Despite the claim of a public incident, no neutral eye-witnesses were cited. She accepted that she and her family were of poor background and denied suggestions about financial dealings, yet the defense's line of questioning regarding monetary exchanges and motivations for false implication remained un-rebutted beyond bare denials. PW victim Sona, introduced further contradictions by stating the incident persisted over a period of two months, contrary to the accounts of a single event provided by her father and sister. She also admitted that the accused is a relative and their families are on visiting terms, which the other witnesses had denied, thereby creating further inconsistency. Her testimony regarding the shirt, including the lack of any purchase record, her denial of wearing a brazier, and the omission of the shirt's color in her statement, leaves uncertainty regarding the very object that allegedly corroborates the incident. She, too, could not explain why no outsiders were named as witnesses despite asserting a public uproar. Collectively, these discrepancies, contradictions, and omissions in the cross-examinations, especially regarding the timeline, the nature and ownership of the torn shirt, the absence of independent witnesses, and the relationship dynamics between the parties, render the prosecution's case doubtful. The defense's suggestion of false implication due to financial motives, though denied, cannot be wholly discarded in light of the otherwise weak corroborative evidence. Thus, the prosecution has failed to prove its case beyond reasonable doubt, and the benefit of doubt must therefore go to the accused, warranting his acquittal.

6. In the present case, the complainant alleged that the accused, Hakim Makrani, had demanded the hand of his daughter Sona in marriage, which he declined. He claimed that the accused became angry, grappled with him, abused him, and upon the intervention of his daughter, tore her shirt from the front, exposing her. However, upon scrutiny, the prosecution's evidence suffers from material contradictions, omissions, and improbabilities, undermining the reliability of the entire version. The incident allegedly occurred about 20 days prior to the lodging of the FIR on 12.05.2019. No plausible explanation has been provided for such a long and unexplained delay, especially in a case involving alleged outrage of modesty of a minor girl, which is inherently sensitive. The claim that the complainant approached nekmards for a resolution appears to be an afterthought and is unsupported by any independent witness. The complainant, PWs Ms. Sumera and Sona (victim) all give differing accounts about how long ago the marriage demand was made, when it was made, and how the accused was related to them. Complainant says demand was made 5-6 days before the incident whereas, Sumera says the demand was made 4-5 months earlier while Sona says there were visiting terms with the accused, contradicting her father's claim of no relationship. The complainant claims the accused was not on visiting terms, while the victim Sona states that they had visiting terms and that the house of accused was just 4-5 meters away. The exact location of the incident is not specified in the FIR, nor clearly described by any witness. No independent witnesses from the scene were examined, despite all prosecution witnesses claimed 10-12 people gathered at the spot. The torn shirt, which is said to be a vital piece of circumstantial evidence, suffers from serious infirmities as its color is not mentioned in the FIR or any 161 Cr.P.C. statements; the accused suggested and witnesses could not convincingly rebut that the shirt was self-inflicted to falsely implicate the accused. The victim herself admitted during cross-examination that police did not record her statement, which is a serious lapse and casts doubt on the investigation's fairness and reliability. Furthermore, despite claims that the minor victim's shirt was torn and her body exposed, no medical examination, report, or psychological evaluation was conducted or presented. There is no injury report, which would normally be expected even in minor scuffles, particularly involving a minor girl. The defense suggested that there was a financial dispute, wherein the complainant allegedly received Rs. 500,000.00 (rupees five lac) from the accused for arranging the marriage of his daughter elsewhere and when the money was wanted back, a false case was lodged. While the witnesses denied this, their inability to explain the long delay, absence of independent evidence, and inconsistencies raise doubt about the motive behind lodging the case. In other words, it could be said that the prosecution's case hinges solely on the testimony of interested witnesses i.e. the complainant and his two daughters, with no corroboration from independent or medical evidence. The delay in lodging the FIR, coupled with material contradictions and omissions in their statements, weakens the prosecution's case significantly. The inconsistencies regarding the relationship with the accused, the nature of the incident, and the treatment of vital evidence like the torn shirt, all raise serious doubts, which under the criminal justice principle of benefit of doubt, must go to the accused.

7. I have noted that in the instant case, the allegation levelled against the appellant is under the thick clouds of doubt especially when the prosecution has not been able to prove the motive and bring on record circumstantial evidence, as the appellants has disclosed his age to be 65 years in his statement recorded under section 342 Cr.P.C. (Ex:09) by the learned trial Court on 23.08.2019, as such, now the age of appellant becomes more than 70 years. The incident is alleged to have taken place in the year 2019 when the age of appellant was 65 years, as such, it would not appeal to the prudent mind to believe that an aged person of 65 years would demand a hand of young girl, who is stated to be of 13/14 years, for his marriage. This aspect, coupled with the foregoing discussion, was not considered by the learned trial Court. While convicting the appellant, the trial Court failed to adopt the safest course, which embodies the true spirit of the safe administration of criminal justice. This is despite the fact that there were notable discrepancies and flaws in the testimonies of the prosecution witnesses. It is a well settled principle of criminal jurisprudence that no conviction can be sustained unless the prosecution adduces evidence that is reliable, trustworthy, and unimpeachable free from material discrepancies that cast doubt on the veracity of the prosecution's case. For the sake of argument, even if it is believed that a scuffle took place between the complainant and the appellant, and that the victim Sona intervened, it would imply that there was no deliberate intention on the part of the appellant to tear her shirt at the breast with the purpose of exposing her. Thus, the essential element of mens rea on the part of the appellant is missing, which was not properly considered by the learned trial Court.

8. The material contradictions highlighted in the testimonies of the prosecution witnesses undermine the credibility of their statements and cast serious doubt on their presence at the scene of the incident. These inconsistencies are sufficient to render the prosecution's case highly doubtful. In this regard, reliance is placed on the case of Zaffar v. The State [2018 SCMR 326], wherein the Hon'ble Supreme Court of Pakistan held that:

"Having discussed all the aforesaid aspect of the case, it has been observed by us that, medical evidence, motive, recovery and for that matter absconding of appellant are merely supportive/corroborative piece of evidence and presence of eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/corroborative piece of evidence to convict the appellant on capital charge.'

In another case, Mst. Shazia Parveen v. The State [2014 SCMR 1197], the Hon'ble Supreme Court of Pakistan held that:

"4. Such related witnesses had failed to receive any independent corroboration inasmuch as there was no independent evidence produced regarding the alleged motive, alleged recovery of rope was legally inconsequential and the medical evidence had gone long away in contradicting the eye-witnesses in many ways. The duration of the injuries and death recorded by the doctor in the postmortem examination report had rendered the time of death allegedly by the eye-witness quite doubtful, the stomach contains belied the eye-witnesses regarding the time of occurrence".

It is a well-settled principle of law that, to extend the benefit of doubt to an accused, it is not necessary that there be numerous circumstances creating doubt. Even a single circumstance raising a reasonable doubt in the mind of a prudent person regarding the guilt of the accused is sufficient for granting such benefit. This benefit is not to be extended as a matter of grace or concession, but as a matter of right. It is also a well-recognized legal maxim that "it is better that ten guilty persons be acquitted than one innocent person be convicted." In this respect, reliance is placed on the case of Muhammad Hassan and another v. The State (2024 SCMR 1427, wherein the Honourable Apex Court held :

2025 P Cr. L J 1693

[Sindh]

Before Jan Ali Junejo, Arsalan Khan---Applicant

Versus

The sTate---Respondent

Criminal Bail Application No. 2515 of 2024, decided on 5th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 377 & 511---Compelling minors to commit sodamy with each other---Punishable with imprisonment---Ad-interim pre-arrest bail, recalling of---Applicant was accused of compelling two minors under the threat of a firearm to engage in sodomy with one another---Applicant allegedly recorded videos and took nude photographs of the victims to blackmail them into further sexual exploitation---Such allegations were strongly supported by the victims' sworn testimonies under S.164, Cr.P.C., which explicitly identified the applicant as the principal offender---During trial proceedings, the applicant accessed his mobile phonecontaining explicit materialby entering the password, thereby confirming his sole control over the device---Trial Court reviewed the video evidence, which depicted the minors in a state of visible fear and distress, corroborating the use of coercion---Said material substantiated the applicant's intent to exploit the victims through blackmail---Video evidence, combined with the S.164, Cr.P.C statements, formed irrefutable proof of guilt---Gravity of the offence, marked by the sexual exploitation of minors, intimidation and blackmailing constituted a severe societal harm, necessitating the outright rejection of bail---Such crimes strike at the core societal values and demand zero tolerance---Evaluating evidentiary inconsistencies at this stage was inappropriate, as bail hearings were not intended for exhaustive trial like scrutiny---Given the heinous nature of the charges and their profound impact on communal conscience, the denial of bail was imperative to uphold justice and protect vulnerable victims---Given that the applicant was, prima facie, linked to the charges under Ss.377, 511 & 377A, P.P.C, read in conjunction with S.377-B, he was not eligible for bail at the current stage---Bail petitionwas accordingly dismissed---Ad-interim pre-arrest bail granted to the applicant was recalled.

Rashid Hussain along with Applicant.

Mumtaz Ali Shah, Assistant Prosecutor General along with P.I. Ghazala PS Jackson for the State.

Dr. Syed Waseem Raza for the Complainant.

Date of hearing: 5th March, 2025.

Order

Jan Ali Junejo, J.---The present Criminal Bail Application has been filed on behalf of the Applicant/Accused, who is seeking pre-arrest bail in connection with a case stemming from FIR No.340 of 2024, registered at P.S. Jackson, Karachi, under Sections 377/511, of Pakistan Penal Code (P.P.C.). The Applicant/Accused initially approached the learned Sessions Court by filing Bail before arrest Application No.5091 of 2024, which was subsequently dismissed by the Court of the learned Xth Additional Sessions Judge, Karachi-West, vide Order dated 28-10-2024. The Applicant/accused was granted ad-interim pre-arrest bail by this Court vide Order dated: 30.10.2024.

1. The facts relevant to the present criminal bail application are as follows:

"The First Information Report (FIR) details the complaint lodged by Niaz Muhammad, a Pakistan Navy employee residing at the provided address, who reported that on 20.10.2024 at 7:00 PM, his 16-year-old son Zain-ul-Abideen and 15-year-old Khubaib Khalid were coerced by accused Arsalan (a local resident) to accompany him to his office near Traffic Police Office, Family Quarters, Keamari, Karachi, under the pretext of retrieving documents. Upon arrival, Arslan allegedly locked the door, brandished a pistol, forced the minors to undress, and photographed/recorded them. He then demanded they engage in sexual acts with each other, threatening to assault them further and claiming prior sexual abuse of Khubaib. When the boys resisted, Arslan assaulted Zain, but they managed to escape, retrieve their clothes, and return home via rickshaw. Niaz Muhammad, after consulting Khubaib's father, sought legal action against Arslan for sexual coercion, intimidation, illegal confinement, and threats, prompting the FIR's registration".

1. The learned counsel for the Applicant has argued that the applicant is entitled to bail due to glaring contradictions in the prosecution's case, including inconsistencies in the minors' testimonies (e.g., sudden introduction of sodomy allegations in Section 164, Cr.P.C. statements absent in the FIR/Section 161, Cr.P.C., discrepancies in transportation modes, and conflicting accounts of how the minors escaped), the complete lack of corroborative medical or forensic evidence (no injuries, medical reports, or DNA proof), and the non-prohibitory nature of the charges under Section 377 read with 511, P.P.C (attempted sodomy, punishable by half the penalty of the substantive offense, thus falling outside the prohibitory clause of Section 497, Cr.P.C.). He emphasizes that the case qualifies for "further inquiry" under Section 497(2) Cr.P.C. given the shifting narratives, fabrication risks (e.g., retaliatory inclusion of the mobile phone as evidence after the applicant sought its return), and proven ulterior motives (extortion via a prior police complaint by the applicant and a property dispute over a mechanic shop). The counsel underscores the applicant's cooperation (DNA samples, Court appearances), clean record, and constitutional rights to liberty, fair trial, and dignity (Articles 9, 10A, 14), asserting that the FIR is a malicious, evidence-deficient fabrication designed to harass the applicant, warranting bail to prevent miscarriage of justice. Lastly, the learned counsel prayed for grant of bail to the Applicant.

2. The learned Additional Prosecutor General argues that bail must be denied given the gravity of the charges under Section 377, read with 511, P.P.C (attempted sodomy against minors), which inherently demands stringent scrutiny to protect vulnerable victims and societal interests. He further contends that the minors' Section 164, Cr.P.C. statements, though belatedly introducing sodomy allegations, are credible and carry judicial weight, as traumatic disclosures often emerge incrementally. He adds that alleged discrepancies in transportation or escape narratives are peripheral and do not negate the core actus reus of the offense, while the absence of medical evidence is irrelevant for an attempt charge, which relies on testimonial proof. He emphasizes that the belated reference to the mobile phone reflects evolving investigative findings, and the accused's attempt to retrieve it suggests consciousness of guilt. He further asserts that claims of extortion or property disputes are speculative, lack documentary corroboration, and appear diversionary. He highlights that granting bail risks witness tampering, given the accused's proximity to the victims and proactive efforts to influence evidence. He underscores that the trial court's dismissal of bail was prudent, having assessed testimonial coherence and prima facie culpability. He stresses that public interest and deterrence mandate prioritizing minor protection over the accused's liberty, as bail would erode trust in the justice system and disincentivize reporting of sexual crimes. He concludes that the defense's hyper-technical objections misrepresent evidentiary standards, and the prima facie case justifies trial without pre-conviction incarceration being deemed unjust. Lastly, the learned APG prayed for dismissal of bail application of the Applicant.

3. The learned counsel for the Complainant has argued that the applicant/accused is a police officer in Traffic Police Karachi and misusing the concession of bail threatening to the complainant on daily basis. He further argued that the bail must be denied given the gravity of the offense involving sexual exploitation of minors, which demands zero tolerance to protect vulnerable victims and uphold societal interests. He emphasizes the credibility of the minors' Section 164, Cr.P.C. statements, recorded judicially, asserting that delayed disclosure of sodomy allegations reflects trauma-induced hesitation, not fabrication. He contends that minor discrepancies (e.g., transportation mode) are immaterial to the core charge of attempted sodomy under Sections 377/511, P.P.C, which relies on testimonial evidence, not medical proof, as corroboration is unnecessary for attempt-based offenses. He highlights the accused's consciousness of guilt in retrieving his mobile phone post-FIR, suggesting an effort to destroy evidence, and dismisses claims of extortion or property disputes as baseless and unsubstantiated by prior complaints or documentation. He stresses the risk of witness intimidation due to the accused's proximity to the victims' families and urges the Court to invoke the doctrine of parens patriae to prioritize minors' welfare. Supporting the trial court's dismissal of bail, he asserts that the prima facie case, grounded in credible testimonies and the accused's conduct, justifies trial without pre-conviction release. He concludes that granting bail would set a perilous precedent, undermining justice for victims and deterring reporting of sexual crimes against minors.

2025 P Cr. L J 1833

[Sindh (Hyderabad Bench)]

Before Muhammad Hasan (Akber), J

Ali Nawaz---Applicant

Versus

The STate---Respondent

Criminal Bail Application No. S-1377 of 2024, decided on 28th February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Bail, dismissal of---Compromise at the stage of hearing of bail application---Scope---Allegation against the accused-applicant was that he along with his co-accused committed murder of two uncles of the complainant by firing---Subsection (2) of S.345 Cr.P.C., deals with cases in which the offences specified therein could be compounded, but only with the permission of the Court, and any compromise arrived at between the parties on their own at any stage is not to take effect automatically, without Court's sanction---No such application had been filed, nor the exercise under S. 345(2),Cr.P.C.,had been carried, nor all the legal heirs of the two deceased had been verified---Compromise (purportedly) entered into between the parties in a criminal case, while considering application for bail, was to have no value, until the same was duly accepted and recorded by the Trial Court---Contention on behalf of the applicant was therefore untenable and there appeared to be no infirmity in the impugned order on this point---It was alleged by petitioner that during his examination-in-chief, complainant had failed to identify the accused persons, which made it a case of further inquiry, hence the applicant be admitted to bail---Perusal of the record showed that bail application was moved by the applicant before the Trial Court on 01-10-2024 and the impugned order thereon was passed on 20-11-2024---Instant application was filed on 19-12-2024, whereas the date of examination-in-chief of complainant was 16-01-2025 i.e. 56 days after passing of the impugned order and 27 days after filing of the instant bail application---Therefore, such fact had come into existence after passing of the impugned order and even after filing of the bail application before this Court, and therefore, a ground which was not taken before the Court of first instance could not be raised at the level of hearing of bail before the High Court for the first time, but the same ought to be pleaded before the Court of first instance---In the present case, there were two dead bodies and the accused had been directly nominated in the FIR and empties had also been recovered---Applicants had been directly nominated in the FIR along with weapons for effective firing and for causing death of two persons and empties had been recovered from the crime scene, which prima facie connected the accused person with the crime---Secondly, neither any valid or verified compromise had been permitted by the Court, nor any such application had been moved by the legal heirs, nor any exercise as contemplated under S.345,Cr.P.C., had been conducted---Bail petition was dismissed, in circumstances.

2024 SCMR 1525; 2024 PCr.LJ 1499; 1997 SCMR 1411 and 2022 SCMR 1245 ref.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others 1998 SCMR 466; Muhammad Akram v. Abdul Waheed and 3 others 2005 SCMR 1342; Tariq Mahmood v. Naseer Ahmad and others PLD 2016 SC 316; Khadim Hussain and another v. The State 2005 YLR 1979 and Ijaz Ahmad v. The State 2006 MLD 546 rel.

Haq Nawaz Talpur and Uzair Rasool for Applicant.

Complainant in person.

Ms. Sana Memon, Assistant Prosecutor General, Sindh along with ASI Muhammad Yakoob Lakho PS Lundo District Sanghar for the State.

Date of hearing: 31st January, 2025.

Order

Muhammad Hasan (Akber), J.---By this order, Criminal Bail Application under section 497 Cr.P.C. for grant of post-arrest bail to the applicant is being decided, whose bail application was earlier declined by the learned Additional Sessions Judge-I/(MCTC) Tando Adam vide Order dated 20.11.2024.

1. It was alleged in the FIR dated 24-02-2024 lodged by Muhammad Aslam that he has bad blood with Asif over matrimonial issues. On 23.02.2024, he and his paternal cousins Miskeen and Farman Ali were sitting at his shop. His two uncles Murad Ali (55 years) and Ghulam Shabbir (45 years) were travelling to their village from Shahdadpur via Link Road Khadim Hussain Zardari by motorcycle. At 03:00 p.m. when they reached at the field of Ghulam Shabbir Khaskheli, six armed individuals suddenly emerged identified as Asif, Ali Nawaz, Gul Muhammad alias Kamani, Ghulam Muhammad alias Sikaalo and two unidentified, each one of them armed with Kalashnikov, G-3 rifle and pistols as specifically mentioned in the FIR, indiscriminately started firing on Murad Ali and Ghulam Shabbir. Resultantly, firearm injuries were received at arm, back, abdomen and other parts of Murad Ali whereas Ghulam Shabbir was injured at his back, chest, abdomen and legs and as a result, both persons died. Consequently, the aforesaid FIR was lodged under sections 302 and 34 P.P.C. The accused persons were arrested on 28-01-2024 and 31-01-2024.

2. Heard learned counsel for the applicant and learned APG and perused the record with their assistance.

3. The first ground contended by the learned counsel for the applicant is that the complainant and the accused persons are related to each other and there is old enmity and bad blood between them. He argued that legal heirs of the two deceased persons have compromised and pardoned the applicant and in this regard Affidavits dated 06-11-2024 were sworn by some of the legal heirs of the deceased Murad Ali and Ghulam Shabbir, however the learned Additional Sessions Judge refused to grant post-arrest bail and rejected application under section 497 Cr.P.C. vide Order dated 20-11-2024 on the ground that permission of the Court as required under section 345(2) Cr.P.C was not obtained, in accordance with law. He further argued that although accused have been named in the FIR, however no independent specific role has been attributed to the accused persons but general allegations have been levelled. He further submitted that trial has commenced and custody of the accused is no more required for investigation. Reliance was placed upon 2024 SCMR 1525, 2024 PCr.LJ 1499, 1997 SCMR 1411, 2022 SCMR 1245.

4. Conversely, the learned APG opposed the application for bail and supported the Order dated 20-11-2024 while contending that the applicant has been directly and specifically named in the FIR and as a result of the firing of the accused persons, two persons have died. Further contends that the cases, falling under section 345(2) of the Cr.P.C. can only be compounded through Court.s sanction, as envisaged in column 3 of section 345(2) of the Cr.P.C., whereas any purported compromise made outside the Court is of no value. Learned APG further argued without prejudice to the above that the affidavits of all the legal heirs of the two deceased persons were also not filed and there were many minors included in the list of legal heirs, whose rights are also to be protected, and states that all these factors can be duly verified and looked into by the learned trial Court.

5. I have given due consideration to the arguments put forth by both the sides. The first question for determination would be with respect to grant of benefit of affidavits/ (purported) compromise in favour of the accused, at the stage of hearing of bail application. In this regard, subsection (2) of section 345 Cr.P.C. deals with cases in which the offences specified therein can be compounded, but only with the permission of the Court, and any compromise arrived at between the parties on their own at any stage is not to take effect automatically, without Court's sanction. On this subject, the jurisprudence as evolved in Pakistan so far, begins with the case of 'Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others'1 when a 2-member Bench of the Supreme Court declared that, a compromise in a criminal case entered into at the stage of bail is to enure to the benefit of the accused person. Later on, in the case of 'Muhammad Akram v. Abdul Waheed and 3 others'2, another 2-member Bench of the Supreme Court took a different view of the matter and declared that, a compromise entered into between the parties to a criminal case, at the stage of bail, is to have no value at the stage of trial, unless sanctioned by the trial Court. Finally, in the case of 'Tariq Mahmood v. Naseer Ahmad and others'3 after analyzing both the above decisions, a three member bench of the Supreme Court concurred with the latter view, in the following words:

"....After passage of the judgment by this Court in the case of Muhammad Akram the situation had undergone a sea change and, thus, the earlier judgments rendered by different High Courts are now to be examined or scrutinized on the basis of the law declared by this Court in the said case of Muhammad Akram. We find ourselves in complete harmony with the legal position declared by this Court in the said case and hold that in all cases covered by the provisions of subsection (2) of section 345, Cr.P.C. no compromise entered into by the parties privately can have any legal sanctity or validity vis- -vis compounding of the relevant offence unless the court before which the prosecution for the relevant offence is pending grants a formal permission accepting the compromise between the parties and in all such cases if no prosecution is pending before any court when the compromise is entered into and no permission by the trial court is granted to compound the offence any compromise privately entered into between the parties cannot be accepted as valid compounding as is declared by subsection (7) of section 345, Cr.P.C."

1. It is also worth noting that permission under subsection (2) of section 345 is not granted in a mechanical manner, but the Court conducts due verification of the effected persons/legal heirs and also carefully ascertains whether the compromise has been entered under duress or free will, so also other rights of the effected persons to the compromise (including diyat or compensation) are also carefully considered by the Court. The learned Judge in the impugned Order has clearly recorded that no such application has been filed, nor the exercise under 345(2) been carried, nor all the legal heirs of the two deceased have been verified. The rights of the heirs, is yet another issue to be determined by the Court. Considering the legal position discussed ibid, I am of the view that a compromise (purportedly) entered into between the parties to a criminal case, while considering application for bail, is to have no value, until the same is duly accepted and recorded by the trial Court. The contention on behalf of the applicant is therefore untenable and there appears to be no infirmity in the impugned Order on this point.

2. The second ground for bail argued by the learned counsel for the applicant is that during his examination-in-chief, Muhammad Aslam son of Muhammad Ramzan (PW-1) has failed to identify the accused persons, which makes it a case of further inquiry, hence the applicant be admitted to bail. In this regard, reliance was placed on copy of examination-in-chief of PW-1, as provided by the learned counsel during course of hearing of this bail application. Learned APG objected to this on the premise that this ground was neither taken before the learned Additional Sessions Judge nor was the same even mentioned in the application before this Court, hence such ground ought to be raised before the court of first instance/ the learned Court. She further points out that there are a total of 10 witnesses to be examined in this case.

2025 P Cr. L J 1844

[Sindh]

Before Jan Ali Junejo, J

Muhammad Qaiser Mirza---Appellant

Versus

Nazim Ali Panhwer and another---Respondents

Criminal Acquittal Appeal No. 500 of 2024, decided on 15th April, 2025.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), S. 417 (2)---Illegal dispossession of property---Appeal against acquittal---Appreciation of evidence---Accused was charged for occupying the commercial plot of complainant forcibly---Evidently, the title documents submitted by the appellant were verified by the Karachi Development Authority and remained uncontested during cross-examination---Conversely, respondent/accused failed to produce any documentary evidence establishing his ownership, thereby rendering his claim legally untenable and devoid of merit---It was a matter of record that the accused failed to challenge the legitimacy of those documents during cross-examination, thereby trengthening the appellant's claim---Furthermore, the chain of title established a clear and lawful transfer of ownership from previous owners to the appellant, reinforcing his lawful possession of the subject property---Conversely, respondent/accused presented an unregistered agreement to sell dated 10-05-2006, purportedly executed by one "RA"---However, that document lacked any evidence establishing how the alleged seller acquired ownership of the property or had the legal authority to transfer it to respondent/accused---Moreover, an unregistered agreement to sell did not confer any legal right, title, or interest over immovable property, rendering it of no evidentiary value---Testimony of Inquiry Officer further solidified the appellant's case, as he categorically stated that his inquiry confirmed the appellant's lawful ownership, while respondent/accused failed to produce any valid title documents to substantiate his possession claim---Trial Court initially convicted respondent/accused based on the evidence presented---However, upon the case being remanded for reconsideration, the same Court acquitted respondent/accused, despite the documentary evidence on record remaining unchanged throughout the proceedings---Furthermore, the testimony of the Inquiry Officer, which corroborated the appellant's claims, further reinforced the strength of the appellant's case---Said fact raised questions about the rationale behind the acquittal, given that the evidentiary foundation remained intact and even gained additional support from the Inquiry Officer's findings---Complainant had also stated in the complaint that respondent/accused took possession of the subject property in April 2018---Despite that, the Trial Court erroneously placed undue emphasis on the alleged lack of a specific date of dispossession in the appellant's complaint---However, since the month of dispossession was clearly specified, the mere absence of an exact date should not have led to any adverse inference---In order to invoke Ss.3 & 4 of the Illegal Dispossession Act, 2005, a complainant must prima facie establish before the Court that he was lawful owner or lawful occupier of the subject property; accused unlawfully entered upon the property without legal authority; accused's entry was with the intent to dispossess, grab, control, or unlawfully occupy the property---Record showed that the appellant had fulfilled all the said essential requirements of law as per evidence available on record---It was observed by the Trial Court that the complaint was filed after one year of dispossession, however, there was no statutory limitation for initiating legal proceedings in criminal offences---Furthermore, the Illegal Dispossession Act, 2005, does not prescribe any time restriction for prosecuting the offences enumerated within it---It was observed by the Trial Court that out of five only two witnesses were produced, however the law did not necessitate the production of all five witnesses whose statements were recorded by the Inquiry Officer---Prosecution must present the best available evidence to support its case against the accused---However, it was not required to call a large number of witnesses; the prosecution may choose as many witnesses as it deem necessary to effectively establish guilt---Said fact aligned with the legal principle that emphasized the quality of evidence over quantity---Circumstances established that the impugned judgment was legally flawed, perverse, and had resulted in a grave miscarriage of justice---Criminal acquittal appeal was allowed, in circumstances.

PLD 2010 SC 661; 2021 MLD 395; 2020 YLR 2331; 2018 PCr.LJ 1341; 2017 YLR Note 64 and 2017 YLR Note 201 ref.

Nazir Ali v. The State PLD 1974 Kar. 369; Niaz Ahmed and another v. Aijaz and others PLD 2024 SC 1152; Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769; Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Bashir Ahmad Line Superintendent I, Lahore v. Water and Power Development Authority 1991 SCMR 2093 and Mandoos Khan v. The State 2003 SCMR 884 rel.

Muhammad Daud Narejo for Appellant.

Mian Haad A.M Paggawala for Respondent No. 1.

Mumtaz Ali Shah, APG for the State.

Date of hearing: 20th March, 2025.

Judgment

Jan Ali Junejo, J.---This Criminal Acquittal Appeal is directed against the Judgment dated 08-07-2024 (hereinafter referred to as the "Impugned Judgment") passed by the Court of learned Xth Additional Sessions Judge, Karachi East (hereinafter referred to as the "Trial Court") in Complaint I.D. No. 64 of 2018, whereby the trial Court acquitted Respondent No. 1, Nazim Ali Panhwar, under Section 265-H(1) Cr.P.C., and directed the appellant to return possession of the disputed property to the accused.

1. The essential details of the case involve Muhammad Qaiser Mirza, the rightful owner of a 160-square-yard industrial property situated at Plot No. AK-568, Sector 6/B, Mehran Town, Korangi Industrial Area, Karachi. Mirza had legally acquired the property from Ghulam Mustafa through a transfer order (KDA/AD(IND)/2017/347) dated April 18, 2017. However, a dispute emerged in April 2018 when Nazim Ali Panhwar, Respondent No. 1, allegedly intimidated and forcibly took possession of the property from Mirza. In response, Mirza filed a criminal complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005. Following a trial, the learned Trial Court initially found the accused guilty on March 20, 2021. Nevertheless, upon revision, the court ordered a retrial, requiring the recording of the Inquiry Officer's evidence and a rewritten judgment. During the trial, the following witnesses provided testimony:

1. PW-1: Muhammad Qaiser Mirza (Complainant)___Exhibit-3

The complainant, Muhammad Qaiser Mirza, was examined as PW-1 and presented documentary evidence to establish his ownership of Plot No. AK-568, Sector 6/B, Mehran Town, Korangi Industrial Area, Karachi. He produced the following exhibits:

· Ex.3/B___Transfer/Mutation Order dated 18.04.2017 (verifying that the property was transferred to him).

· Ex.3/C___Challan No. 20 (showing payment details related to the property).

· Ex.3/D___Allotment Order dated 25-10-1989 (original allotment document).

· Ex.3/E___Challan issued dated 17.11.2016 (payment for mutation).

· Ex.3/F___KDA Application Form (Pre-lease Transfer by Joint Declaration No.30030) (legal record of the property transaction).

· Ex.3/G___Transfer Order dated 05.12.2016 (previous transfer document).

· Ex.3/H___KDA Application (Pre-lease Transfer by Joint Declaration No.2263) (confirming lawful ownership).

· Ex.3/I___KDA Challan dated 14.04.2017 (additional payment confirmation).

· Ex.3/J___KDA Letter for Verification of Ownership dated 21.04.2017 (confirming that KDA verified his ownership).

2. Inquiry Officer: SIP Muhammad Arif___Court Witness (CW-1)___Exhibit-8. SIP Muhammad Arif, the Inquiry Officer, was examined as CW-1 and played a crucial role in verifying the ownership documents and dispossession allegations. His testimony and report at Ex.8/A supported the complainant's claim, as he confirmed:

· The KDA verified that the title documents submitted by the complainant were genuine.

· Local vicinity witnesses confirmed that the accused had taken illegal possession of the property.

· The accused failed to produce any ownership documents when asked.

(iii) Other Court Witnesses

1. CW-2: Shabbir Ahmed___Exhibit-9

2. CW-3: Muhammad Hanif___Exhibit-10

3. CW-4: ASI Imtiaz Ali Shah (Process Server) ___Exhibit-12

Under Section 342 of the Code of Criminal Procedure (Cr.P.C.), the accused, Nazim Ali Panhwar, was examined to explain the allegations against him. However, his statement was evasive and failed to provide a credible defense. The Respondents denied all allegations, claiming they were never in illegal possession of the property but failed to provide any evidence of their ownership or lawful possession. Despite being given the opportunity under Section 340(2), Cr.P.C., to testify on oath in his defense, the accused chose not to do so. Upon remand, the learned Trial Court re-evaluated the evidence and acquitted the Respondents vide Impugned Judgment dated 08.07.2024, giving rise to this appeal.

1. The learned counsel for the appellant argued that the impugned judgment dated 08.07.2024 is illegal, perverse, and contrary to the evidence on record, as the learned trial court failed to appreciate the verified title documents of the appellant, including KDA transfer orders, allotment orders, and verification letters, all of which substantiate his lawful ownership of Plot No. AK-568, Sector 6/B, Mehran Town, Korangi Industrial Area, Karachi. It was contended that the Inquiry Officer categorically confirmed the genuineness of the appellant's documents, and multiple complaints had been lodged regarding the illegal occupation by the accused. The learned trial court misapplied the Illegal Dispossession Act, 2005, by erroneously holding that it applies only to organized land grabbers, whereas any person who unlawfully occupies another's property falls within its purview. Further, the accused failed to produce any ownership document or utility bills proving his lawful possession, whereas the appellant presented overwhelming evidence of his title. The order directing the return of possession to the accused is beyond jurisdiction, as the accused has no legal claim over the property. Therefore, it is prayed that this Hon'ble Court may graciously allow this appeal, set aside the impugned judgment dated 08.07.2024, convict the accused under Sections 3 and 4 of the Illegal Dispossession Act, 2005, and uphold the appellant's lawful possession.

2. Conversely, the learned counsel for the respondents argued that the appellant failed to establish the exact date and time of his alleged dispossession, raising doubts about the credibility of his claim. It was asserted that the original allottee of the property was Muhammad Ikram, and the appellant failed to present a complete chain of sale transactions, thereby creating uncertainty regarding his ownership. The learned counsel contended that the one-year delay in filing the complaint weakens the appellant's case, suggesting it was an afterthought. Moreover, no independent witnesses were produced to confirm the alleged dispossession, and even the tenants presented as witnesses failed to provide tenancy agreements or documentary proof to support their claims. The respondents further argued that the Illegal Dispossession Act, 2005, applies only to professional land grabbers and not to individual possession disputes, making the case a civil matter rather than a criminal one. Based on these grounds, the learned counsel for the respondents prayed for dismissal of the appeal and affirmation of the impugned judgment dated 08.07.2024. The learned counsel has relied upon the case laws i.e. PLD 2010 SC 661; 2021 MLD 395; 2020 YLR 2331; 2018 PCr.LJ 1341; 2017 YLR Note 64 and 2017 YLR Note 201.

3. After carefully considering the arguments presented by the learned counsel for both parties and thoroughly examining the material on record, it is evident that the title documents submitted by the appellant were duly verified by the Karachi Development Authority (KDA) and remained uncontested during cross-examination. Conversely, Respondent No.1 failed to produce any documentary evidence establishing his ownership, thereby rendering his claim legally untenable and devoid of merit. During the trial, the complainant Muhammad Qaiser Mirza (PW-1) produced multiple documents and exhibits to establish his lawful ownership and possession of Plot No. AK-568, Sector 6/B, Mehran Town, Korangi Industrial Area, Karachi. The key documents exhibited during his evidence are as follows:

| | | | | --- | --- | --- | | Exhibit No. | Document Description | Purpose | | Ex.3/B | Transfer/Mutation Order dated 18.04.2017 | Confirms the transfer of the subject property to the complainant from the previous owner Ghulam Mustafa. | | Ex.3/C | Challan No. 20 | Shows payment details related to the subject property. | | Ex.3/D | Allotment Order dated 25.10.1989 | Original allotment order of the subject property. | | Ex.3/E | Challan issued dated 17.11.2016 | Payment receipt showing compliance with property transfer requirements. | | Ex.3/F | KDA Application Form (Pre-lease Transfer by Joint Declaration No.30030) | Legal document required for processing ownership transfer. | | Ex.3/G | Transfer Order dated 05.12.2016 | Previous transfer document proving chain of ownership. | | Ex.3/H | KDA Application (Pre-lease Transfer by Joint Declaration No.2263) | Further supports the complainant's legal ownership claim. | | Ex.3/I | KDA Challan dated 14.04.2017 | Another payment receipt confirming ownership transaction. | | Ex.3/J | KDA Letter for Verification of Ownership dated 21.04.2017 | Official verification from the Karachi Development Authority (KDA) confirming the authenticity of the complainant's ownership documents. |

1. The Inquiry Officer (CW-1, SIP Muhammad Arif) unequivocally testified that upon conducting an investigation at the Karachi Development Authority (KDA) office at Civic Centre, he verified the authenticity of the ownership documents submitted by the appellant, confirming them to be genuine and lawful. It is a matter of record that the accused failed to challenge the legitimacy of these documents during cross-examination, thereby strengthening the appellant's claim. Furthermore, the chain of title establishes a clear and lawful transfer of ownership from previous owners to the appellant, reinforcing his lawful possession of the subject property. Conversely, Respondent No.1 presented an unregistered Agreement to Sell dated 10-05-2006, purportedly executed by one Muhammad Ramzan Almani. However, this document lacks any evidence establishing how the alleged seller acquired ownership of the property or had the legal authority to transfer it to Respondent No.1. Moreover, as per settled law, an unregistered Agreement to Sell does not confer any legal right, title, or interest over immovable property, rendering it of no evidentiary value. The testimony of Inquiry Officer SIP Muhammad Arif further solidified the Appellant's case, as he categorically stated that his inquiry confirmed the appellant's lawful ownership, while Respondent No.1 failed to produce any valid title documents to substantiate his possession claim. The trial court initially convicted Respondent No. 1 based on the evidence presented. However, upon the case being remanded for reconsideration, the same Court acquitted Respondent No. 1, despite the documentary evidence on record remaining unchanged throughout the proceedings. Furthermore, the testimony of the Inquiry Officer, which corroborated the Appellant's claims, further reinforced the strength of the Appellant's case. This raises questions about the rationale behind the acquittal, given that the evidentiary foundation remained intact and even gained additional support from the Inquiry Officer's findings. It is appropriate to reproduce Paragraph No.6 of the Complaint as under:-

"That, after purchase of the said property which is in the shape of an open plot and issuance of Transfer Order in favour of the Complainant, the Complainant used to visit the said property regularly. That in the month of May 2017 when the Complainant reached to the said property, the Respondent No. 1 above named came over the said property and told the Complainant that the said plot belongs to Respondent No. 2 and demanded an amount of Rs.3,000,000/- (Rupees three million only) as extortion money to start the construction work else the Complainant has to bear huge losses."

The Complainant has also deposed during his examination-in-chief as under:-

"On 19-05-2017 when I visited the plot in question, where accused No.1 came there and claimed the owner ship of plot in question. He also deposed that accused No.2 is owner of plot in question and he used to look after the plot in question. He demanded Rs.30,00,000/- for vacating the plot in question. So I proceeded at P.S. and filed the application. Police called him and he gave same statement which he deposed to me.........."

1. The Complainant has also stated in the Complaint that the dispute arose, and Respondent No.1 took possession of the subject property in April 2018. Despite this, the trial Court erroneously placed undue emphasis on the alleged lack of a specific date of dispossession in the appellant's Complaint. However, since the month of dispossession was clearly specified, the mere absence of an exact date should not have led to any adverse inference. Under similar circumstances in the case of Nazir Ali v. The State (PLD 1974 Karachi 369), this Court observed that: "The argument of the learned Advocate proceeds on the assumption that if a person enters upon the property of another at a time when the latter is absent, no criminal offence would be committed; for the reason that there was no person available to be subjected to annoyance, intimidation or any other offence. This argument is completely fallacious because the criterion is the intention of an accused person and not the physical presence or absence of the person whose property is subjected to trespass. A person may enter with a view to annoy another, but for the absence of the person in occupation, the effect of intention to annoy may not be instantaneously manifest; nevertheless the intention to annoy under such circumstances can be reasonably inferred, more so in cases where the accused does not have any right to the property". The recorded evidence unequivocally proves that the appellant is the lawful owner, whereas Respondent No.1 is an illegal occupant without any lawful title to justify his possession. Consequently, the trial Court's directive to restore possession of the subject property to Respondent No.1 is legally flawed and contrary to established legal principles. It is a well-settled principle of law that in order to invoke Sections 3 and 4 of the Illegal Dispossession Act, 2005, a complainant must prima facie establish before the Court that:

2. He is the lawful owner or lawful occupier of the subject property.

3. The accused unlawfully entered upon the property without legal authority.

4. The accused's entry was with the intent to dispossess, grab, control, or unlawfully occupy the property.

It is matter of record that the Appellant has fulfilled all the aforesaid essential requirements of law as per evidence available on record. The scope of the Illegal Dispossession Act, 2005, is not restricted to organized land mafia or Qabza groups but extends to all forms of illegal occupation, as reaffirmed in the case of Niaz Ahmed and another v. Aijaz Ahmed and others (PLD 2024 SC 1152). Further reliance is placed on the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 SC 769), wherein it was observed that: "Reading of section 3(1) the Illegal Dispossession Act, 2005 shows that terms like dispossess, grab, control or occupy had been used which clearly meant that illegal dispossession in all forms had been made an offence and by the use of the terms 'no one' and 'whoever' in sections 3(1) and (2), anyone and everyone who committed such an offence was made liable for punishment. The very use of the terms like 'no one' and 'whoever' were clearly intended to convey the widest possible meaning for the offenders. Thus without any distinction any person who illegally dispossessed, grabbed, controlled or occupied property of a lawful owner or occupier shall be liable for prosecution under the provisions of the Illegal Dispossession Act, 2005". The underlining is supplied.

1. With regard to the observation made by the learned Trial Court stating that "the Complaint was filed after one year of dispossession", it is important to note that there is no statutory limitation for initiating legal proceedings in criminal offences. Furthermore, the Illegal Dispossession Act, 2005 does not prescribe any time restriction for prosecuting the offences enumerated within it. Additionally, in similar circumstances, the Apex Court, in the case of Rahim Tahir v. Ahmed Jan and 2 others (PLD 2007 SC 423), held that: "The respondent admittedly was inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent and thus apparently, he was an illegal and unauthorized occupant of the premises. The contention that Illegal Dispossession Act, 2005, is not applicable to an illegal occupant, who was in occupation of the premises prior to the date of the promulgation of the Act, has no substance. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants". The underlining is supplied. In a similar situation in the case of Bashir Ahmad, Line Superintendent I, Lahore v. Water and Power Development Authority (1991 SCMR 2093), the Apex Court ruled that the mere delay in initiating prosecution does not, in itself, render the proceedings unlawful. The Apex Court emphasized that unless a specific time limitation is prescribed by the governing law, there is no statutory restriction on the prosecution of criminal cases.

2. The trial Court observed that while the Inquiry Officer cited five witnesses in the report, only two were brought to Court. However, the testimonies of all five witnesses supported the same key point: that the Complainant is the rightful owner of the property in question and that Respondent No. 1's possession is unlawful. The Inquiry Officer's findings confirmed that the Complainant was the rightful owner of the property in question, while the possession by Respondent No. 1 was deemed unlawful, a fact substantiated by the record. Therefore, the law did not necessitate the production of all five witnesses whose statements were recorded by the Inquiry Officer. It is well established that the prosecution must present the best available evidence to support its case against the accused. However, it is not required to call a large number of witnesses; the prosecution may choose as many witnesses as it deems necessary to effectively establish guilt. This aligns with the legal principle that emphasizes the quality of evidence over quantity. This principle is supported by the ruling of the Honourable Supreme Court of Pakistan in the case of Mandoos Khan v. The State (2003 SCMR 884).

3. In light of the aforementioned reasons, this Court finds that the judgment of the learned trial Court dated 08.07.2024 is legally flawed, perverse, and has resulted in a grave miscarriage of justice. Accordingly, the present Criminal Acquittal Appeal is allowed, and it is hereby ordered as follows:

2025 P Cr. L J 1926

[Sindh (Hyderabad Bench)]

Before Arshad Hussain Khan and Syed Fiaz-ul-Hassan Shah, JJ

Aijaz Ali and 3 others---Applicants

Versus

Qurban Ali and another---Respondents

Criminal Revision Application No. D-06 of 2025, decided on 8th April, 2025.

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

----Ss. 23 & 7---Penal Code (XLV of 1860), Ss. 365-A & 34---Kidnapping or abduction for extorting property, valuable security, etc., common intention, 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 his brother for ransom---Admitted position that the charge had been framed by the Anti-Terrorism Court and now the matter was fixed for recording of evidence---Provisions of S.23 of the Anti-Terrorism Act, 1997, deal with the transfer of cases to any other Court having jurisdiction provided the offence is not Scheduled Offence---Offence of kidnapping for ransom is itself enumerated under S.2(n) of the Anti-Terrorism Act, 1997---Sentence for the commission of offence for kidnapping for ransom has been provided under S.7(e) of the Act, 1997---Therefore, neither any Court can try the offence of kidnapping for ransom nor the law has authorized any Court with sentencing power except the Court as established under S.13 of the Act, 1997---Offence of kidnapping for ransom is independently defined in S.2(n) under the Anti-Terrorism Act, 1997 and in the provision of S.365-K, P.P.C---Regardless the absence of the ingredients of "terrorism" as embodied in S.6 subsection (1) and its extensive scope stretched out from S.6 subsection 2(e) of the Anti-Terrorism Act, 1997, due to severity and heinousness of the offence, the legislatures have declared it as a Scheduled Offence under S.2(t) and Schedule III "Entry No.4" of the Anti-Terrorism Act, 1997, which was added through amended Act No. II of 2005---In summation, the provisions of kidnapping for ransom is itself an offence under the Anti-Terrorism Act, 1997 and it has been classified as a Schedule Offence exclusively triable by the Court of Anti-Terrorism as established under S.13 of the Anti-Terrorism Act, 1997---Criminal revision application was dismissed, in limine.

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

Rasool Bakhsh Soomro for Applicant.

Date of hearing: 8th April, 2025.

Order

Syed Fiaz-ul-Hassan Shah, J.---1. Urgency is granted.

2 to 4. Through this Criminal Revision Application, the applicants have prayed for setting-aside the impugned order dated 10.02.2025 whereby their application seeking transfer of their case to the ordinary Court of Jurisdiction has been dismissed.

The Applicants are nominated in Crime No.70 of 2024, registered with Police Station 60th Mile, Shaheed Benazirabad under sections 365-A and 34 of the Pakistan Penal Code, 1860 read with Sections 6 and 7 of the Anti-Terrorism Act, 1997 and FIRs Nos.79, 80, 81 and 82 of 2024 under section 24 of the Sindh Arms Act, 2013. Initially, the Applicants have filed an application before the learned Anti-Terrorism Judge, Shaheed Benazirabad for transfer of case to ordinary Sessions Court which was dismissed through the Order dated 10.02.2025 passed by the Anti-Terrorism Court, Shaheed Benazirabad which order has impugned before us.

The Applicants have alleged that they have privy with the complainant Qurban Ali in respect of sale/purchase of some agriculture land and it is alleged that the complainant had managed the story and falsely caused to register FIR for abduction of his brother against ransom. The complainant and Applicants / Accused party are residing in same locality previously agricultural land was purchased by the complainant party from the father of Applicant No.1/accused Aijaz Ali under sale agreement. The possession was handed over to complainant party however a sum of Rs.50,00,000/- were required to be paid by complainant party to the Applicant / accused Aijaz Ali and the complainant instead of payment of outstanding amount has lodged FIR on false and frivolous allegations.

It is admitted position that the charge has been framed by the Anti-Terrorism Court, Shaheed Benzairabad and now the matter is fixed for recording of evidence. We have noticed that provisions of section 23 of the Anti-Terrorism Act, 1997 deals with the transfer of cases to any other Court having jurisdiction provided the offence is not scheduled offence. For the sake of convenience provisions of Section 23 is reproduced herein:

"23. Power to transfer cases to regular Courts. Where, after taking cognizance of an offence, (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."

The arguments of learned counsel for the Applicants that there is concurrent jurisdiction to try the case relating to the provisions of section 365-K Pakistan Penal Code, 1860 is misconceived and untenable. The offence of Kidnapping for ransom is itself enumerated under section 2(n) of the said Anti-Terrorism Act, 1997, which is re-produced 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;

Furthermore, the sentence for the commission of offence for kidnapping for ransom has been provided under section 7(e) as under:

"the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, on conviction, with death or imprisonment for life."

Therefore, neither any Court can try the offence of kidnapping for ransom nor the law has authorized any court with sentencing power except the Court as established under section 13 of the Anti-Terrorism Act, 1997. The case law relied upon by the learned counsel for the Applicants reported as "Ghulam Hussain and others v. The State and others" (PLD 2020 SC 61) is distinguishable. It does not relate to the schedule offence and it does not contemplate the mode, manner or proceeding of the trial under the Anti-Terrorism Act, 1997. The word "terrorism" has been defined in section 6(1) of the ATA of 1997, which means the use or threat of action, which falls within the meaning of sub-section (2) of section 6 of the ATA of 1997 and:

(a) ---

(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 of 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.

A great need of time was required to interpret the offence of "terrorism" which has strikingly described by the larger bench of the august Supreme Court of Pakistan. The dicta laid down by the Hon'ble Supreme Court is audaciously related with the definition of word "terrorism" used by the legislatures in Section 6 of the Anti-Terrorism Act, 1997 and it has elaborately been emphasized that the "terrorism" is in fact an intent, act, design, object or motive having nexus with the ingredients of clauses (b) and (c) of section 6(1) of the ATA of 1997 and marked a distinction that no matter how gruesome or brutal act of commission of murder or other incident involve in a crime unless the intent, act, design, object or motive of terrorism is not available on the record, it cannot be considered as "terrorism" and cannot be considered on the touchstone of section 6 of the ATA of 1997 in the absence of any of the ingredients of section 6 of the Anti-Terrorism Act, 1997.

Anxiously, the offence of kidnapping for ransom is independently defined in section 2(n) under the Terrorism Act, 1997 and in the provision of Section 365-K of Pakistan Penal Code, 1860. Regardless the absence of the ingredients of "terrorism" as embodied in section 6 subsection (1) and its extensive scope stretched out from section 6 subsection 2(e) of the Anti-Terrorism Act, 1997, due to severity and heinousness of the offence, the legislatures have declared it as a scheduled offence under Section 2(t) and Schedule III "Entry No.4" of the Anti-Terrorism Act, 1997 which was added through amended Act No. II of 2005 and it is re-produced under:

2 (t) "Scheduled offence" means an offence as set out in the Third Schedule;"

2025 P Cr. L J 1974

[Sindh (Larkana Bench)]

Before Khalid Hussain Shahani, J

Zulfiqar Ali---Applicant

Versus

Senior Investigating Officer Crime No. 151 of 2023 of P.S Mehar, District Dadu and 3 others---Respondents

Cr. Misc. Application No. S-378 of 2023, decided on 3rd Mach, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 173---Penal Code (XLV of 1860), S. 319---Qatl-i-khata---Quashing of FIR---Pursuant to the registration of FIR, investigation followed and in due course the police submitted a report under S. 173, Cr.P.C., against accused/petitioner---Judicial Magistrate, after due examination of the investigating report and the material on record, declined to take cognizance against the nominated accused/petitioner and accepted the police report recommending the disposal of the case under "C" Class---Validity---Impugned order of the Judicial Magistrate accepting the "C" Class report was in line with settled legal principles---Where an Investigating Agency, after thorough inquiry, finds no substantive evidence to establish a cognizable offence, the acceptance of a "C" Class report by a judicial forum does not warrant interference, unless it is demonstrated that the order suffered from gross illegality, arbitrariness, or failure to exercise jurisdiction judiciously---In the instant case, no such legal infirmity was apparent in the impugned order---Findings of the Judicial Magistrate were well-reasoned, legally sound and aligned with the established principles of criminal justice---High Court found no legal justification to interfere with the impugned order---Application was dismissed accordingly.

PLD 2021 SC 123; PLD 2019 SC 456 and 2021 SCMR 234 rel.

Muhammad Afzal Jagirani for Applicant.

Hamid Ali J. Chandio for Respondent No. 3.

Muhammad Noonari, DPG for the State.

Order

Khalid Hussain Shahani, J.---The applicant, Zulfiqar Ali Khoso, has invoked the inherent jurisdiction of this Court under Section 561-A Cr.P.C, seeking judicial review of the order dated 28.10.2023, passed by the learned Judicial Magistrate-II, Mehar. The impugned order pertains to the final investigation report submitted under Section 173 Cr.P.C. in Crime No.141 of 2023, registered under Section 319 P.P.C at P.S. Mehar. The learned Magistrate, after due examination of the investigation report and the material on record, declined to take cognizance against the nominated accused, Dr. Tillat Majeed Buledai, and accepted the police report recommending the disposal of the case under 'C' Class.

1. The case originates from an incident dated 29-04-2023, wherein the complainant's wife underwent a caesarian section at the hospital of the accused doctor at approximately 11:30 p.m. The complainant alleged that post-operation, his wife experienced severe pain, and despite informing the hospital staff, the accused doctor negligently delayed her visit until 4:00 a.m., at which point she advised shifting the patient to Larkana hospital. The complainant suspected medical negligence and shifted his wife to Larkana hospital, where she later expired. Based on these allegations, an FIR was lodged.

2. Upon completion of the investigation, the police, after a thorough inquiry into the FIR allegations, statements of the parties, and available evidence, concluded that the matter did not constitute a prosecutable criminal offence. Consequently, the final report under Section 173 Cr.P.C. recommended the disposal of the case under "C" Class. The learned Judicial Magistrate, upon independent scrutiny, accepted the final report and declined to take cognizance against the accused.

3. The applicant's counsel contended that the impugned order was passed in a hasty manner, without proper application of judicial mind, and without considering the fact that the accused doctor was explicitly named in the FIR. The counsel argued that the order lacked legality and justification.

4. Section 318 of the P.P.C defines Qatl-i-Khata as an unintentional killing caused by mistake of act or fact. Section 319 P.P.C provides for Diyat liability in such cases and, in instances of rash or negligent acts (excluding rash or negligent driving), also permits imprisonment of up to five years as Tazir. Jurisprudence established by the Hon'ble Supreme Court of Pakistan in cases such as PLD 2021 SC 123 and 2020 SCMR 456 emphasizes that allegations of criminal negligence must be strictly scrutinized in light of established principles of criminal jurisprudence. Criminal liability under Section 319 P.P.C necessitates proof of both mens rea (criminal intent) and actus reus (criminal act).

5. The burden lies on the prosecution to establish gross negligence beyond reasonable doubt. As held in PLD 2019 SC 456 and 2021 SCMR 234, mere lack of due care, caution, or inadvertence may give rise to civil liability but does not necessarily attract criminal liability unless gross negligence is demonstrated. Furthermore, The Sindh Healthcare Commission Act, 2013 (Sindh Act No.VII of 2014) governs allegations of medical negligence. Under Sections 5, 6 and 7 of the Act, the Commission is empowered to investigate allegations of maladministration, malpractice, or medical negligence in the healthcare sector. The Act explicitly provides:

Section 5: The Commission shall conduct third-party audits of private healthcare establishments.

Section6: The Commission may undertake investigations on complaints from aggrieved persons or on its own motion.

Section 7: The Commission has jurisdiction over cases involving medical malpractice and may refer such cases to a competent forum.

1. Sections 27, 29 and 30 of the Sindh Healthcare Commission Act provide immunity and bar of jurisdiction regarding legal proceedings against healthcare providers, stating:

Section 27: No legal proceedings shall lie against the Commission or healthcare providers acting in good faith.

2025 P Cr. L J 1996

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Soomro, J

Mst. Zainab alias Jamna---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-1166 of 2024, decided on 4th November, 2024.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(1), S.No.3(c)---Qanun-e-Shahadat (10 of 1984), Arts. 164 & 165---Possession of narcotic substances---Bail, grant of---Further inquiry---Allegation against the petitioner-accused was that 1166-grams charas was recovered from his possession---Admittedly, the applicant/accused was arrested from the street, which was a thoroughfare from where the alleged recovery of 1166 grams of charas had taken place, but the complainant/Police Official did not record or photograph the search, seizure or arrest procedures---Article 164 of the Qanun-e-Shahadat, 1984, explicitly allowed the use of evidence obtained through modern devices or techniques---Article 165 of the said law superseded all other laws in that regard---Police Officers were generally equipped with cell phones containing built-in cameras and in this case modern devices and also cameras had not been used---First proviso to S.497(1),Cr.P.C., stipulated that the Court might pass order for the release on bail of any person under the age of sixteen years, any woman, or any person who was sick or infirm, who was accused of an offence---Term "such an offence" in this proviso referred to offences listed under the second part (prohibitory clause) of S.497(1), Cr.P.C., as for all other non-bailable offences, the Court was already empowered to grant bail under the first part of S.497(1), Cr.P.C.---Therefore, the first proviso granted the Court the same discretion to grant bail in respect of offences covered by the prohibitory clause against accused persons who were under the age of sixteen, women, or those who were sick or infirm, as it did under the first part of S.497(1)---Meaning thereby that, for the persons mentioned in the first proviso to S.497(1), Cr.P.C.,bail should generally be granted and refused only in exceptional circumstances---No exceptional circumstance existed in the present case meriting dismissal of the instant bail application---It was alleged by prosecution that other cases of similar nature had been registered against the applicant thus she was not entitled to get bail, however, mere registration of other criminal cases against an accused did not disentitle her for the grant of bail if on merits she had prima facie a good case for enlargement of bail---Applicant had made out her case at this stage for further inquiry---Bail application was allowed, in circumstances.

Zahid Sarfraz Gill v. The State 2024 SCMR 934; Tahira Batool v. The State PLD 2022 SC 764; Asiya v. State 2023 SCMR 383; Ghazala v. State 2023 SCMR 887; Munawar Bibi v. State 2023 SCMR 1729; Moundar and others v. The State PLD 1990 SC 934; Muhammad Rafiq v. State 1997 SCMR 412; Syeda Sumera Andaleeb v. The State 2021 SCMR 1227; Nazir Ahmed alias Bhaya v. The State 2022 SCMR 1467 and Ali Anwar Paracha v. The State and another 2024 SCMR 1596 rel.

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

----S. 497---Bail order---Observations of the Court---Scope---Observations made in bail orders are tentative in nature and will not influence the Trial Court while deciding the case of the applicants on merits.

Naeem Uddin Sahito and Noman Aftab for Applicant.

Ms. Sana Memon, Assistant Prosecutor General, Sindh along with complainant SIP Muhammad Ali Arain for the State.

Date of hearing: 1st November, 2024.

Order

Khadim Hussain Soomro, J.---Through the instant Criminal Bail Application, the above-named applicant seeks post-arrest bail in Crime No. 278/2024, registered under Section 9(1) 3 (c) of the C.N.S. Amendment Act, 2022, at PS B-Section, Latifabad, Hyderabad. The applicant's bail plea was previously declined by the learned Model Criminal Trial Court-1st Additional Sessions Judge/Special Judge C.N.S Hyderabad, vide order dated 04.10.2024.

1. Brief facts of the prosecution case are that on 30.09.2024 at 2200 hours, a police party of PS B-Section Latifabad, Hyderabad, headed by SIP Muhammad Ali Arain along with his subordinate staff on receiving spy infroamtion arrested the applicant and recovered 1166 grams of charas from her possession.

2. Learned counsel for the applicant submits that the applicant/accused is a victim of police highhandedness; that the applicant/accused is a respectable Parda Nasheen lady and a law-abiding citizen with a good respect and reputation in the society; that on 30-09-2024 at around 08:00 pm, the complainant party/police officials of Police Station B-Section unlawfully entered the applicant's residence by climbing over the wall and forcefully opened the door without search warrant or presence of any female police officers, they intrusion disregarded the privacy and sanctity of the home which leds to physical assault and then applicant/accused was forcibly taken away from her residence without any justification. When the applicant's party approached the concerned Police Station of B-Section, they discovered that applicant/accused had been booked in the alleged case; and, that the complainant had deliberately failed to involve any independent witnesses to act as mashir in this case, despite the fact that the alleged place of the incident is a main road in a densely populated area, as such, this is a clear violation of the mandatory provision of Section 103 Cr.P.C, necessitating further inquiry into the case; that co-accused Mst. Sakina has already been granted bail by the learned 1st Additional Sessions Judge, Hyderabad.

3. The bail plea of the applicant has been opposed by Learned A.P.G. on the grounds that the applicant/accused is nominated in FIR and a huge quantity of narcotic substance has been recovered from her exclusive possession; that no mala fide on the part of police for false implication of the applicant/ accused has been established; that other cases of similar nature have been registered against the applicant, therefore, she is not entitled to grant of bail.

4. I have heard learned counsel for the applicant as well as A.P.G. for the State and have gone through the material available on record with their able assistance.

5. Admittedly, the applicant/accused was arrested from the street behind Uroosi Hall, Unit No.6 Latifabad, which is a thoroughfare from where the alleged recovery of 1166 grams of charas had taken place, but the complainant/police official does not record or photograph the search, seizure, or arrest procedures. Article 164 of the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques. Article 165 of the said law supersedes all other laws in this regard. The police officers are generally equipped with cell phones containing built-in cameras and in this case modern devices so also cameras have not been used. In this context, I am fortified with the case of Zahid Sarfraz Gill v. The State (2024 SCMR 934), in which the apex Court has observed that Section 25 of the C.N.S. Act 1997, exempts the application of Section 103 of the Code of Criminal Procedure, 1898, which mandates the presence of two or more respectable local inhabitants during a search. Nevertheless, it is unclear why the police and Anti-Narcotics Force (A.N.F.) members do not record or photograph the search, seizure, or arrest procedures. Article 164 the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques, and Article 165 of the same law supersedes all other laws in this regard. In narcotics cases, prosecution witnesses are typically personnel from the Anti-Narcotics Force (A.N.F.) or police officers, who are generally equipped with cell phones containing built-in cameras. Given that the witnesses in such cases are predominantly government officials and there are usually few witnesses, trials often experience unnecessary delays. Consequently, the accused frequently seek bail initially from the trial court; if denied, they escalate their request to the High Court, and if still unsuccessful, they approach the Supreme Court. The use of mobile phone cameras by the police and A.N.F. to document the search, seizure, and arrest could serve as substantial evidence. Such recordings or photographs would help substantiate the presence of the accused at the crime scene, demonstrate possession of the narcotic substances, and validate the procedures of search and seizure. Moreover, this practice could mitigate false allegations against A.N.F. or police officials of fabricating evidence for ulterior motives.

2025 P Cr. L J 1

[Lahore]

Before Ali Zia Bajwa, J

Rehana Nazir---Petitioner

Versus

District Police Officer, Gujrat and 2 others---Respondents

Writ Petition No. 40169 of 2024, decided on 19th July, 2024.

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

----S. 5---Punjab Destitute and Neglected Children Act (XVIII of 2004), Ss. 1 (k) & 23---Constitution of Pakistan, Art. 199---Habeas corpus---Juvenile offender---Reformative approach---Destitute and neglected child---Detenu was a minor boy aged about 11 years who was reported to have been arrested in a theft case---Held, that at the heart of our criminal justice system, treatment of child offenders should be guided by reformative approach---Young individuals, often led astray by difficult circumstances, deserve a chance to find their way back to normal life and become valuable members of society---By focusing on reformation rather than punishment, we address root causes of their behaviour---Society must give juvenile offenders the tools they need to succeed and prevent them from returning to a life of crime---Each child reformed is a success for community, showing that with right support, everyone can change for the better---Effective implementation of Juvenile Justice System Act, 2018 requires a multi-faceted approach involving all stakeholders---By adhering to the provision of Juvenile Justice System Act, 2018, it can be ensured that criminal justice system is fair, humane, and geared towards rehabilitation of juvenile offenders---Detenu and his siblings, having suffered neglect and destitution, were sent to embrace of Child Protection Bureau---Custody of minor would be regulated by Child Protection Court to undertake all necessary measures to ensure that such vulnerable children were safeguarded from future involvement in any unwanted activities---High Court expected from State to fulfill its obligation to nurture and shield such ill-fated minors---High Court directed investigating agency to dismantle gangs exploiting minors for their nefarious designs, ensuring that such vulnerable youths would no longer be ensnared in criminal activities---Constitutional petition was disposed of accordingly.

Dr. Arslan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SCMR 903 rel.

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

----S. 5---Trial of juvenile---General rule and exception---By generally prohibiting joint trials with adults, law aims to ensure that juveniles receive special consideration and treatment appropriate to their age and developmental stage---When Court orders joint trial, deviating from general rule of separate trial for juvenile and adult, it must provide compelling reasons that demonstrate careful application of judicial discretion.

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

----S. 11---Anonymity of name and identity---Object, purpose and scope---Law aims to prevent potential harm, stigma or undue attention that can negatively impact juvenile's future---Protection ensures that juveniles can navigate legal process without fear of public exposure, fostering rehabilitative rather than punitive approach to juvenile justice system.

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

----S. 14---Report of Probation Officer---Object, purpose and scope---Purpose of such report is to provide Juvenile Court with comprehensive understanding of juvenile's background and circumstances---Such information aids Juvenile Court in making informed, fair, and just decisions that prioritize juvenile's rehabilitation and reintegration into society, rather than mere punishment---Report of Probation Officer ensures that Court considers juvenile's overall well-being, potential for reform, and the best interests of both the juvenile and society.

(e) Jurisprudence---

----Enforcement and implementation of laws---State functionaries, duty of---Law is not merely a formality, it is an obligation, a compulsion that ensures order and justice within society---Written statutes and regulations are more than ink on paper---Enforcement of a statute is not optional but a mandatory duty entrusted to every state functionary, a responsibility that comes with the authority and power vested in their positions---Such duty is not just about compliance rather it is about upholding rule of law---Failure to implement law results in grave violation of fundamental rights of those subject to it---When laws are not enforced, the vulnerable are left unshielded and their rights are trampled upon---When laws are not implemented, resulting in violation of rights of those whom law seeks to protect, the state functionaries responsible for such negligence must be held accountable---To turn a blind eye to breach of laws is to let the very foundation of justice crumble beneath our feet---Accountability must be order of the day, ensuring that those entrusted with power to enforce law do not shirk their responsibilities---Justice delayed is justice denied and every state functionary who fails to implement law is complicit in such denial.

Nemo. for Petitioner.

Shahid Nawab Cheema, A.A.G. and Noor-ul-Amin Mengal, Secretary Home, Muhammad Iqbal Khan, Secretary Social Welfare and Bait-ul-Maal Deptt., Mirza Nasar Ahmad, Additional Attorney General, Asad Ali Bajwa, Deputy Attorney General, Mohsin Raza Bhatti and Ijaz Ahmad Basra, Assistant Attorneys General, Syed Farhad Ali Shah, Prosecutor General Punjab, Hafiz Asghar Ali, Deputy Prosecutor General, Muhammad Usman Anwar, Secretary Public Prosecution Department, Owais Nauman Kundi, Additional Secretary (Admin), Wajid Aziz, S.O. (Lit), J.R. Sultan, Section Officer, Abdul Rauf, Addl. Secretary, Asmat Ullah Hunjra and Nawazish Ali Directors, PPD, Asim Raza, Aditional Secretary, Prisons, Dr. Qadeer Alam, AIG, (Judicial), Inspectorate of Prisons, Aamir Shafique Additional Secretary, Tariq Ismail, Litigation Officer, Husnain Khalid, Director Porogram, Muhammad Mumtaz, Child Protection Officer, Shama Ilyas, CPO, Mrs. Shazia, Child Psychologist, Dr. Qais-ul-Malook, Medical Officer and Muhammad Riaz, S.P/Investigation, Gujrat for the State.

Kamran Bashir Mughal, Aftab Maqsood and Dr. Zahid Farooq as Amici Curiae.

Dates of hearings: 27th June, 1st July, 3rd, 9th, 15th and 19th July, 2024.

Judgment

Ali Zia Bajwa, J.---Through this constitutional petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as 'the Constitution'), read with Section 491 of the Criminal Procedure Code, 1898 (hereinafter referred to as 'the Code'), the petitioner sought the indulgence of this Court for the recovery of her grandson, namely Ghulam Murtaza (hereinafter 'the detenu') aged eleven years from the alleged illegal custody of respondent No. 3, Hassan Abbas.

1. The detenu was presented before this Court by the Station House Officer, Police Station Dinga, District Gujrat, who apprised the Court that he (the detenu) was implicated in a theft case. It was further conveyed that, following the provisions of the Juvenile Justice System Act, 2018 (hereinafter referred to as 'The Juvenile Act'), the detenu has been released on a surety bond. The detenu appeared in a pitiable condition, seemingly falling squarely within the definition of a 'destitute and neglected child' as delineated under Section 1(k) of The Punjab Destitute and Neglected Children Act, 2004 (hereinafter referred to as 'The Child Act'). His custody was handed over to the Child Protection and Welfare Bureau, Punjab. A report filed by the Superintendent of Police (Investigation) of District Gujrat revealed that the detenu has five other siblings. Both the detenu and his brother, Ahmed, are involved in criminal activities with the active knowledge of the petitioner and their mother, Nabeeha. The younger sister of detenu, Shaheen Fatima, was also presented before the Court, suffering severely from skin diseases on her head. The custody of the neglected and destitute minors, Ahmed and Shaheen Fatima, was also entrusted to the Child Protection and Welfare Bureau, Punjab.

2. Reports of the concerned quarters indicate a disturbing lack of effort to properly implement The Juvenile Act. The learned Law Officers, representing both the Federal and Provincial Governments, unequivocally submit that their respective departments are ready to fulfill their obligations under The Juvenile Act to ensure its effective implementation.

3. At the heart of our criminal justice system, the treatment of child offenders should be guided by a reformative approach. These young individuals, often led astray by difficult circumstances, deserve a chance to find their way back to normal life and become valuable members of society. By focusing on reformation rather than punishment, we address the root causes of their behaviour. We give them the tools they need to succeed and prevent them from returning to a life of crime. Each child reformed is a success for our community, showing that with the right support, everyone can change for the better. To quote Nelson Mandela, 'There can be no keener revelation of a society's soul than the way in which it treats its children.'

4. International law strongly advocates for a reformative approach while dealing with child offenders. The United Nations Convention on the Rights of the Child (UNCRC), the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), and the Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines, 1990) are key international legal instruments that bind Pakistan to ensure the proper treatment and protection of juvenile offenders. These instruments require Pakistan to uphold the rights of children, prioritize their rehabilitation over punishment, and implement measures to prevent juvenile delinquency. The UNCRC is a comprehensive human rights treaty that outlines the civil, political, economic, social, health, and cultural rights of children. Adopted by the United Nations General Assembly on November 20, 1989, the UNCRC is the most widely ratified human rights treaty in history, highlighting the global commitment to the well-being and protection of children. Pakistan is a signatory to the UNCRC, having ratified the treaty on December 12, 1990. Pakistan, as a signatory to several international treaties and conventions, has specific responsibilities regarding the treatment of child offenders. The primary international instruments that shape Pakistan's obligations include the UNCRC and its associated protocols.

5. It took over a decade for Pakistan to promulgate its first exclusive law dealing with juvenile offenders. This landmark legislation, the Juvenile Justice System Ordinance of 2000 (JJSO), was enacted in July 2000. The JJSO served as the cornerstone of juvenile justice in Pakistan, providing a framework for the treatment and rehabilitation of young offenders. However, as global perspectives on juvenile justice evolved, the need for more comprehensive legislation became obvious. On May 24, 2018, Pakistan ushered in a new era with the enactment of The Juvenile Act. This Act replaced the JJSO, marking a renewed commitment to the protection and rehabilitation of juvenile offenders. The Juvenile Act builds upon the foundations laid by the JJSO, incorporating modern principles of juvenile justice and ensuring alignment with international standards. It emphasizes the importance of rehabilitation over punishment, education over incarceration, and the inherent worth and potential of every child. With The Juvenile Act, Pakistan has reaffirmed its dedication to nurturing its younger citizens, offering them hope and a pathway to a brighter future. The Juvenile Act harmonizes the legal framework of Pakistan with the principles outlined in key international instruments, emphasizing protection, dignity, and the opportunity for reform. It would be pertinent to take a comprehensive overview of the dynamic provisions within The Juvenile Act to fully grasp the legal framework it establishes.

Legal Assistance at State Expense

1. Every juvenile offender or a victim child of an offence is entitled to legal assistance at the expense of the State. Within twenty-four hours of being taken into custody, a juvenile must be informed of his legal rights by a legal practitioner. The legal practitioner, appointed by the relevant Provincial Government department or the Juvenile court to assist the child victim or juvenile offender, must have a minimum of seven years of experience at the Bar. It provides legal assistance not only to a child who is a victim of an offence but also to a child who is accused. This provision ensures state-funded legal assistance for juveniles, both victims and accused, informing them of their legal rights within twenty-four hours of custody. It requires appointed lawyers to have at least seven years of experience, aiming to protect rights, ensure justice, comply with international standards, prevent wrongful convictions, and uphold a fair, child-sensitive legal process.

Constitution of Juvenile Courts

1. Under Section 4 of The Juvenile Act the Prime Minister, in consultation with the concerned High Court, shall establish or designate Juvenile Courts within three months of the commencement of this Act, as notified in the official Gazette. These courts may serve one or more Sessions Divisions, and trials may be held at locations specified by the High Court. Judges appointed to Juvenile Courts must be Sessions Judges, Additional Sessions Judges, Judicial Magistrates with the powers of Section 30 of the Code or practicing advocates with at least ten years at the Bar, appointed under the terms set by the Prime Minister in consultation with the High Court. Juvenile Courts have exclusive jurisdiction over cases where a juvenile is accused of an offence. All such pending cases at other trial courts will be transferred to the appropriate Juvenile Court upon the commencement of The Juvenile Act. Changes in the court's composition or case transfers will not necessitate recalling or re-hearing witnesses; existing evidence remains valid.

2. The Juvenile Court is mandated to decide cases within six months of taking cognizance. If unable to meet this deadline, the court must seek an extension from the High Court, explaining the delay. Failing this, the complainant or juvenile may apply to the High Court for an extension. Additionally, the Juvenile Court may hold sittings at locations different from those used by ordinary courts for other trials. The purpose of holding Juvenile Court sittings at different locations from ordinary courts is to create a less intimidating environment for juveniles. This reduces the stress and anxiety of court proceedings, fostering a setting conducive to rehabilitation and fair treatment. It ensures sensitivity to the unique needs of juveniles, promoting a justice system that prioritizes their well-being and reintegration into society.

The Process of the Arrest of a Juvenile

1. Under Section 5 of The Juvenile Act upon the arrest of a juvenile, he must be kept in an observation home. The officer-in-charge of the police station is required to promptly inform the juvenile's guardian, if available, of the arrest, including the time, date, and name of the Juvenile Court where the juvenile will be presented. Additionally, the officer must notify the concerned probation officer to gather information about the juvenile and relevant circumstances to assist the Juvenile Court in its inquiry. No juvenile shall be arrested under preventive detention laws or the provisions of Chapter VIII of the Code. Furthermore, the report under Section 173 of the Code must detail the steps taken by the officer-in-charge to refer the case to the Juvenile Justice Committee for diversion, as envisaged by Section 9 of The Juvenile Act.

2. The purpose of this provision is to ensure that juvenile offenders are kept and treated separately from the ordinary criminal justice system and offenders. This separation aims to protect the unique needs and vulnerabilities of the juveniles, providing them with an environment and processes that focus on rehabilitation rather than punishment. It seeks to prevent juveniles from being exposed to the potentially harmful influences of adult offenders and to promote their reintegration into society as responsible individuals. This approach emphasizes a justice system that is tailored to the developmental and psychological needs of young offenders, fostering their growth and positive transformation.

Special Investigation Mechanism

1. As per Section 7 of The Juvenile Act, a juvenile must be interrogated by a police officer of at least the rank of Sub-Inspector, under the supervision of a Superintendent of Police or an SDPO. The investigation officer shall be assisted by a probation officer or a government-designated social welfare officer. Together, they will prepare a social investigation report, which will be attached to the report prepared under Section 173 of the Code. The purpose of this arrangement is to ensure that the investigation of juvenile is conducted with appropriate oversight and support. By involving higher-ranking police officers and having the assistance of probation or social welfare officers, the process aims to be thorough, fair, and sensitive to the juvenile's circumstances. The social investigation report helps to provide a comprehensive understanding of the juvenile's background, which is essential for informed decision-making and promoting the juvenile's rehabilitation.

Arrest and Probation of Female Juvenile Offenders

1. Under no circumstances can a female juvenile be apprehended or investigated by a male police officer, nor shall she be released on probation under the supervision of a male officer. Furthermore, a female juvenile shall only be housed in a Juvenile Rehabilitation Centre that is established or certified exclusively for female inmates. The purpose of these provisions is to ensure the safety, dignity, and well-being of female juveniles within the criminal justice system. By prohibiting male officers from apprehending, investigating, or supervising female juveniles, it aims to prevent any potential abuse, harassment, or discomfort that might arise from interactions with male officers. Additionally, by mandating that female juveniles be kept in rehabilitation centers exclusively for female inmates, it seeks to provide a more secure and supportive environment tailored to their specific needs.

Constitution of Juvenile Justice Committee

1. Under Section 10 of The Juvenile Act, upon the commencement of this Act, and not later than three months thereafter, the Law and Justice Division, in consultation with the concerned Sessions Judge, shall establish a Juvenile Justice Committee for each Sessions Division. This committee will be comprised of four members: a serving Judicial Magistrate with powers under Section 30 of the Code, who will head the committee; the district Public Prosecutor; a member of the local Bar with at least seven years of standing, appointed by the Sessions Judge for a term of two years; and a serving probation officer or social welfare officer not below the rank of BPS-17. This composition aims to ensure a balanced and just approach to juvenile justice system. The purpose of the Juvenile Justice Committee is to oversee and ensure the fair treatment and rehabilitation of juvenile offenders. By bringing together a Judicial Magistrate, District Public Prosecutor, an experienced Bar member, and a probation or social welfare officer, the committee aims to provide a comprehensive and balanced approach to juvenile justice system. This multidisciplinary team works to ensure that juvenile cases are handled with the necessary legal oversight, prosecutorial guidance, legal advocacy, and social support, ultimately developing an environment conducive to the rehabilitation and reintegration of juvenile offenders into society.

2. The Juvenile Justice Committee, ideally located within the same premises as the Juvenile Court, plays a vital role in the juvenile justice system. It handles case diversions referred by the police, prosecution, or Juvenile Court, aiming to resolve them within a month. The committee also inspects observation homes and Juvenile Rehabilitation Centres, issuing directives to enhance the welfare and social reintegration of juveniles. Additionally, it performs other prescribed functions, with the Sessions Judge of each District providing the necessary staff for its effective administration and functioning. This setup ensures a balanced and rehabilitative approach to juvenile justice system.

Disposal of Cases through Diversion

1. Diversion measures are innovative approaches designed to resolve legal cases without formal judicial proceedings, steering offenders away from traditional criminal justice system towards rehabilitation and reintegration programs. These measures aim to tackle the root causes of criminal behaviour, offering supportive interventions to prevent future offenses. Key elements include counselling and therapy to address behavioural issues, mental health problems, and substance abuse. Community service allows offenders to give back to society, fostering a sense of positive contribution. Educational programs provide valuable skills and knowledge, enhancing employability and lawful conduct. Restorative justice programs promote accountability and amends through mediation between offenders and victims. Probation or supervised release provides an alternative to incarceration, ensuring compliance with specific conditions. Youth diversion programs focus on mentorship, family support, and education, guiding juveniles away from criminal behaviour towards personal growth and societal harmony.

2. According to Section 9 of The Juvenile Act disposal of cases through diversion allows for certain juvenile cases to be resolved outside the traditional judicial process with the consent of the juveniles or their guardians. Diversion is applicable for all the juveniles accused of minor offenses or in cases involving major offenses, if they are under sixteen at the time of the offense. For diversion cases can be referred to the Juvenile Justice Committee, which handles the case through diversionary methods. Diversion can occur at any stage of police investigation or trial. When the police refer a case to the Juvenile Justice Committee, the required police report under Section 173 of the Code is postponed until the Committee issues its final order. The Committee, with the victim's consent, may use various diversion methods, including restitution of movable property, reparation of damages, written or oral apologies, community service, fines, costs of proceedings, placement in a Juvenile Rehabilitation Centre, or written and oral reprimands. If the complainant is a state functionary and the offense does not involve a private individual, the case can still be diverted with the consent of the public prosecutor. All offenses, whether minor or major, are deemed compoundable for diversion purposes.

Special Procedure of Juvenile Court

1. Section 11 lays down that the Juvenile Court shall adhere to the procedures outlined in the Code unless otherwise specified by The Juvenile Act. Only specific individuals may be present at court sessions: the court staff and officers, parties to the case and those directly involved, the juvenile's guardian, and others as directed by the court. The court may order individuals to withdraw to protect the juvenile's decency or morality. If the court determines that the juvenile's presence is not essential at any point, it may proceed without the juvenile. Should a juvenile be found suffering from a serious illness, the court will ensure he receives necessary treatment at a hospital or medical institution, with the costs covered by the State. The purpose of these provisions is to ensure that the proceedings of the Juvenile Court are conducted in a manner that prioritizes the well-being and dignity of the juvenile. By restricting attendance to essential personnel and individuals directly involved in the case, the law aims to create a more private and less intimidating environment. This helps to protect the juvenile's privacy and fosters a sense of security.

2. Notwithstanding the provisions of Section 239 of the Code or any other prevailing law, a juvenile shall not be charged or tried for an offense alongside an adult. However, the Juvenile Court may permit a joint trial if it deems such an arrangement to be in the interests of justice. In case of joint trial, the court may waive the juvenile's physical presence, allowing participation through audio-visual technology. The purpose of these provisions is to protect juveniles from the potentially negative influences and pressures of being tried alongside adults. By generally prohibiting joint trials with adults, the law aims to ensure that juveniles receive special consideration and treatment appropriate to their age and developmental stage.

3. It must be kept in mind that the general rule under the law mandates separate trials for juveniles and adult offenders. However, the law provides an exception that if the court is satisfied that a joint trial serves the interest of justice, it may proceed accordingly. 'If the court is satisfied' connotes that the court has reviewed the circumstances and facts and has determined that a joint trial is appropriate and justifiable. It indicates that the court has exercised its judgment and discretion to reach a decision based on the interest of justice and fairness. When a court orders a joint trial, deviating from the general rule of separate trial for juvenile and adult, it must provide compelling reasons that demonstrate the careful application of judicial discretion.

The Anonymity of Name and Identity

1. Under Section 13 of The Juvenile Act, subject to the exceptions as provided in this Section, any person who prints or publishes the name or any information that could reveal the identity of a juvenile shall be subject to imprisonment for a term of up to three years and shall also be liable to a fine. Furthermore, anyone who prints or publishes any information regarding proceedings before a Juvenile Court, about a juvenile, without prior permission from the Juvenile Court, shall be punished with imprisonment for a term of up to two years and shall also be liable to a fine. The law aims to prevent potential harm, stigma, or undue attention that could negatively impact the juvenile's future. This protection ensures that juveniles can navigate the legal process without fear of public exposure, fostering a rehabilitative rather than punitive approach to juvenile justice system.

The Report of Probation Officer

1. Section 14 of The Juvenile Act mandates that the probation officer, upon the direction of the Juvenile Court, shall assist and prepare a report within the specified time regarding the juvenile's character, educational, social, and moral background; any voluntary admission of committing an offense; evidence of the juvenile's involvement in the offense; the legal assistance provided to the juvenile and their family; steps taken towards mediation or compromise with the complainant or victim; and the possibility of sending the juveniles to a Juvenile Rehabilitation Centre or releasing them on probation. The report of the probation officer is to be treated as confidential, except where the Juvenile Court deems it appropriate to communicate its substance to the juvenile's guardian. If the guardians dispute the contents of the report, the juvenile court may allow them an opportunity to present relevant evidence.

2. The purpose of such a report is to provide the Juvenile Court with a comprehensive understanding of the juvenile's background and circumstances. This information aids the juvenile court in making informed, fair, and just decisions that prioritize the juvenile's rehabilitation and reintegration into society, rather than mere punishment. It ensures that the court considers the juvenile's overall well-being, potential for reform, and the best interests of both the juvenile and society.

Establishment and Certification of Observation Homes and Juvenile Rehabilitation Centres

1. Under Section 20 of The Juvenile Act the Interior Division, in consultation with the concerned Division, may establish and maintain observation homes and Juvenile Rehabilitation Centres for the reception of juveniles, including separate facilities for female juveniles. Additionally, the Interior Division may certify observation homes or Juvenile Rehabilitation Centres managed by non-governmental organizations for juvenile reception. Furthermore, the Interior Division may certify established associations or societies within local areas for the social reintegration or rehabilitation of juvenile offenders released on parole or discharged from a Juvenile Rehabilitation Centre. The Division is also empowered to regulate the activities and functions of such released or discharged juveniles in the prescribed manner. According to Section 22 of The Juvenile Act, in order to report to the juvenile court or Juvenile Justice Committee on measures for social reintegration, health, education, and other conditions of the inmates, a member of the Juvenile Justice Committee along with a medical officer may inspect an observation home or a Juvenile Rehabilitation Centre. This inspection requires prior approval from the head of the Committee, or an officer authorized by the relevant Provincial Government department.

2. Unfortunately, The Juvenile Act has not been implemented in its true letter and spirit. This landmark legislation, designed to bring justice to a child victims and rehabilitation of juvenile offenders, remains more a promise than a reality. Its vision of Specialized Juvenile Courts, compassionate legal assistance, and rehabilitative measures have been dimmed by inadequate execution. The Juvenile Justice Committees, envisioned to protect the welfare and facilitate the social reintegration of young offenders, have unfortunately failed to become operational and fulfill the commendable objectives for which The Juvenile Act was enacted. The goals of protecting juveniles from harsh penalties and ensuring their dignified treatment have been undermined by systemic inefficiencies and a persistent gap between policy and practice. The failure of implementation of The Juvenile Act to be fully realized leaves many young lives still ensnared in the criminal justice system that struggles to provide the care and opportunity they deserve.

3. Law is not merely a formality; it is an obligation, a compulsion that ensures order and justice within society. The written statutes and regulations are more than ink on paper. The enforcement of a statute is not optional, but a mandatory duty entrusted to every state functionary, a responsibility that comes with the authority and power vested in their positions. This duty is not just about compliance rather it is about upholding the rule of law. The failure to implement the law results in a grave violation of the fundamental rights of those subject to it. However, when these laws are not enforced, the vulnerable are left unshielded, and their rights trampled upon. When laws are not implemented, resulting in the violation of the rights of those whom the law seeks to protect, the state functionaries responsible for this negligence must be held accountable. To turn a blind eye to the breach of these laws is to let the very foundation of justice crumble beneath our feet. Accountability must be the order of the day, ensuring that those entrusted with the power to enforce the law do not shirk their responsibilities. Justice delayed is justice denied, and every state functionary who fails to implement the law is complicit in this denial.

4. The reports submitted by the concerned state functionaries reveal a disheartening situation. No serious effort whatsoever was made to implement The Juvenile Act. Such inaction on the part of state functionaries suggests that the Government is dragging its feet on a beneficial piece of legislation. The Juvenile Act, like many other laws, remained merely a paper law, with its noble intentions never translating into meaningful action.

5. Both executive agencies and Courts in Pakistan are constitutionally and legally bound to uphold the rule of law within their respective domains. This obligation is critical to maintaining justice, ensuring fairness, and protecting the rights of individuals. When a law is not implemented, the duty of the Constitutional Court encompasses several key actions. It undertakes judicial scrutiny, issues enforcement orders, protects Constitutional rights, holds government officials accountable, and prescribes remedial measures. Through these actions, the Court ensures that laws are not merely words on paper but are actively upheld and enforced, preserving the integrity of the legal system. In the above-discussed circumstances, this Court is compelled to issue the following directions to ensure the prompt implementation of The Juvenile Act:-

I. The respective Government must take immediate and decisive steps to implement The Juvenile Act to the fullest extent and meaning without further delay. It is imperative that no further time is wasted in bringing the protections and reforms of this vital legislation to fruition. For the greater good of our youth, we must ensure that the commitments of this law are swiftly and fully realized.

II. The Provincial Police Officer shall ensure that a juvenile offender shall be interrogated only by a police officer of a rank not below that of a Sub-Inspector. Such interrogation shall be carried out under the supervision of a Superintendent of Police (SP) or a Sub-Divisional Police Officer (SDPO). The investigating officer shall be assisted by a probation officer or a social welfare officer notified by the Government.

III. The Prosecutor General Punjab, as a principal stakeholder in the criminal justice system, must also ensure the strict compliance of The Juvenile Act. It is incumbent upon the concerned prosecutors to promptly identify and address any investigation conducted in violation of this law at the earliest possible stage. By doing so, they safeguard the integrity of the legal process and uphold the rights and protections afforded to juveniles under this beneficial legislation.

IV. To achieve the true purpose of The Juvenile Act, it is essential to always opt for the disposal of cases through diversion following Section 9 of this Act. Diversion focuses on rehabilitation over punishment, reducing recidivism, minimizing stigma, improving efficiency in the justice system, and prioritizing the best interests and well-being of the juvenile offenders. During the investigation, the investigating agency, and during the trial, the prosecution and trial courts shall refer cases to the Juvenile Justice Committees for disposal through diversion in the prescribed manner.

V. To ensure strict compliance with The Juvenile Act during investigations, the prosecution and investigating agency must maintain a close and effective liaison. This cooperation is essential to guarantee that juvenile offenders are treated in full accordance with the provisions of the Act, upholding both the spirit and letter of the law.

VI. The Law and Justice Division, in consultation with the Sessions Judge, shall bring forth the Juvenile Justice Committee in each Sessions Division without slightest delay to ensure effective and meaningful implementation of The Juvenile Act. Without these committees being operational, the true spirit of this law cannot be fully realized.

VII. To meet the requirements of The Juvenile Act, arrested juveniles shall be kept in observation homes. The Government shall establish these observation homes to provide safe shelter for them in every District. The physical separation of juveniles from adult offenders in detention facilities is non-negotiable, with separate lockups and detention centers dedicated to young offenders.

2025 P Cr. L J 22

[Lahore]

Before Aalia Neelum C.J and Farooq Haider, J

Babar alias Jani---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 43616-J and Murder Reference No. 103 of 2021, decided on 15th July, 2024.

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

----Ss. 302(b), 506 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Delay of thirty five minutes in lodging the FIR---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---As per prosecution case, incident took place at 11.00 am on 10.07.2017---After the incident, the complainant along with others, shifted the dead body of deceased to the hospital---After that, the complainant went to the police station and reported the incident through a written application and FIR was chalked out at 11.35 am---Fact remained that inter-se distance between the place of occurrence and the police station was only one kilometer---Scribe of the written complaint, who was not known to the complainant in the earlier trial, was subsequently introduced by complainant---Deposition of complainant proved nothing substantial except that he signed the information, whereof FIR was registered---First Information Report was the result of deliberation and consultation, which was also revealed from the inquest report, wherein, in column No. 3 relating to the date and time of receiving information about the death, the date '10.07.2017' was mentioned and after writing "time" space was left blank---Investigating Officer had not mentioned the time of preparing the inquest report---Record showed that post-mortem was conducted with delay of seven hours and twenty five minutes---Delay in conducting the postmortem examination reflected that the FIR was recorded with the delay and was not recorded at the time it was claimed to be recorded---Moreover, it appeared that till the completion of the postmortem report, the FIR was not registered, which led to the irresistible conclusion that the FIR was recorded with the delay and that the same could not be used against the appellant as a corroborative piece of evidence---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 506 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Delay of seven hours and twenty minutes in conducting the post-mortem---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---Medical Officer deposed that on 10.07.2017, the dead body of deceased was brought by Police Constable at 12:15 pm and he conducted postmortem examination on the dead body of deceased at 06:20 pm---During cross-examination, Medical Officer admitted that the dead body was received at 12:15 pm, whereas police papers were received at 06:00 pm---No delay was there on the part of Medical Officer in conducting postmortem examination---Deposition of Medical Officer and perusal of contents of the postmortem report revealed that complete police papers were received at 06:00 pm on 10.07.2017, although Investigating Officer deposed that after registration of the case he visited the hospital, prepared documents and referred the dead body along with documents to the hospital through Police Constable---As per postmortem report, the time elapsed between death and postmortem was about 06 hours, whereas, from the time of occurrence, there was a delay of 07 hours and 20 minutes---Medical Officer stated that he issued postmortem report and also attested application for postmortem examination, injury statement and inquest report relating to the deceased prepared by the Investigating Officer---If FIR was registered within 25 minutes, there was no plausible explanation as to why the postmortem examination was conducted with the delay---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 506 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---Complainant deposed that co-accused caught hold of deceased whereas accused present in the Court gave churri blows on right arm and neck of the deceased---Eye-witness deposed that when accused made churri blows upon neck and right arm of deceased till such period co-accused caught hold of deceased and thereafter, both of them fled away---Medical Officer observed four injuries on the back of deceased---Medical Officer opined that four injuries collectively and two injuries were enough to cause the death of a person in ordinary course of nature and such two injuries were on the back of the chest of deceased---Medical Officer deposed that no injury was caused from the front side to the deceased---It was not possible that if co-accused was holding the deceased, then the appellant could have inflicted the injuries on his back---Medical Officer stated explicitly that the injuries were not inflicted from the front; relatively the same were caused from the back---Such fact created doubt about the genuineness of the version given by the complainant and eye-witness---Thus, the prosecution version was contradicted by medical evidence, which affected the core of the prosecution's case and rendered the witness's testimony liable to be discredited---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 506 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Presence of the eye-witnesses at the place of occurrence not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---Per the prosecution case, the complainant for purpose of fetching vegetables was standing in front of shop S-Sweets at 11:00 am; the deceased reached in front of S-Sweets and also stopped in search of riders---Similarly, brother of the complainant, rickshaw driver, along with two given up witnesses, also stopped in front of S-Sweets in search of riders---Meanwhile, co-accused and the appellant arrived at the spot-on a motorcycle, and the occurrence occurred---Scaled site plan was prepared on the instructions of both the prosecution witnesses---In the scaled site plan, the presence of the deceased was shown at point "B," while the complainant was shown at point "D" and eye-witnesses were present at point "E" and from point "F" appellant and co-accused reached and after the incident fled away---In the scaled site plans, the place of occurrence was shown in front of the vegetable shop of "MK" and the deceased, prosecution witnesses and the accused were not present in front of S-Sweets---Evidence of both the prosecution witnesses was unreliable and not trustworthy regarding their presence at the place of occurrence---Although, the site plan was not a substantive piece of evidence according to Art. 22 of the Qanun-e-Shahadat, 1984, yet it reflected the view of the crime scene and the same could be used to contradict or disbelieve eye-witnesses---So, the prosecution witnesses could not justify their presence at the spot---Thus, all the evidence about the presence of eye-witnesses at the spot appeared unreliable---With that background, the presence of the alleged eye-witnesses on the spot seemed doubtful---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211 rel.

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

----Ss. 302(b), 506 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Motive not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---Motive behind the occurrence was that the deceased used to restrain the accused from developing illicit relations with his sister---Prosecution case in that regard was vague and could hardly inspire confidence---Complainant had deposed that name of his sister, with whom motive of illicit relations with accused was attached, was not mentioned either in the FIR or in the private complaint and she also did not join the investigation---Investigating Officer had deposed that woman relating to motive part of the occurrence mentioned in the FIR was not produced before him by the complainant and her whereabouts and particulars were also not provided to him during investigation---Investigating Officer could not trace out her particulars as the complainant did not intent to disclose anything about her---Other Investigating Officer deposed that woman relating to motive part mentioned in the FIR was not produced before him by the complainant---In the circumstances, the motive, as alleged, was an afterthought and had not been proved by any credible evidence---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 506 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Recovery of weapon of offence on the disclosure of accused---Inconsequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---Record showed that weapon of offence, i.e., churri was recovered on the pointing of the appellant, on 15.08.2020---Positive report of Forensic Science Agency regarding the presence of human blood on the blade of churri was available---As per the prosecution case, on 06.08.2020, the accused was arrested---Upon the disclosure of the appellant on 15.08.2020, a churri was recovered from the opposite railway station---Statements of recovery witness and Investigating Officer and perusal of the recovery memo. revealed that after the recovery of Churri which was wrapped in a shopper, same was taken into custody through sealed parcel---However, it was not mentioned in the Forensic DNA and Serology Analysis Report that the sealed parcel was submitted---Besides, the Forensic Science Agency Report revealed that property in the case was released to Investigating Officer on August 19, 2020---Swabs taken from the blade of Churri were examined on October 29, 2020---If the property of the case was released to Investigating Officer on 19.08.2020; this then which case property was analyzed by the Analyst on October 29, 2020; this created doubt on the report of Forensic Science Agency---Entire prosecution evidence was silent on such aspect of the case---Thus, there was no link evidence to prove that the Churri recovered from the accused was again received back from the Investigating Officer by the moharrar and the same was re-deposited in the Malkhana or handed over to the Moharrar---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 506 & 34---Qatl-i-amd, criminal intimidation, common intention---Appreciation of evidence---Safe custody of case property not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting churri blows---It is necessary that as and when case property is taken out from Malkhana, necessary entry is made in the Malkhana Register and at the time when case property is re-deposited in Malkhana---Case property in murder cases must be kept in safe custody from the date of seizure till its production in the Court---Necessary that when case property is re-deposited in the Malkhana, an entry in the Malkhana Register must be made---Dire necessity has been casted upon the prosecution to produce in Court the abstract of the Malkhana Register for ensuring and dispelling of any aura of skepticism seeping into the prosecution case, especially vis-a-vis safe custody of the case property, "being," redeposited in the Malkhana---In the present case there was doubt as to whether it was the same case property that was recovered from the accused and sent to Forensic Science Laboratory or it was the case property of some other case---Prosecution had failed to prove the case against the accused---Deposition of witnesses revealed that the prosecution did not prove that the case property was kept in safe custody---Circumstances established that the prosecution had failed to bring home a charge against the appellant beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

(h) Criminal trial---

----Abscondance---Scope---Abscondance could not be taken as proof of guilt if sufficient connecting evidence against the accused is unavailable---Abscondance creates merely a suspicion in the mind, but the same is not conclusive proof of guilt---Mere absconsion of the accused is no ground to convict him if the prosecution has failed to prove its case against the accused.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt will 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.

Ms. Shahzadi Parveen (Defence counsel) for Appellant.

Tariq Siddique, Additional Prosecutor General for the State.

Muzammal Ahmad Baig for the Complainant.

Date of hearing: 15th July, 2024.

Judgment

Aalia Neelum, C.J.---The appellant-Babar alias Jani, son of Mukhtar Ahmad alias Mushtaq Ahmad, Caste Rehmani, resident of Street No.3, Lal Di Khurli, Farooq Ganj Jandiala Road, District Sheikhupura, has assailed his conviction and sentence recorded by the learned Additional Sessions Judge (MCTC), District Sheikhupura vide judgment dated 24.06.2021 in a private complaint filed under sections 302, 34, 506-B P.P.C. P.S. City B-Division, District Sheikhupura titled "Amanat Masih v. Babar alias Jani." in case FIR No.547/2017, whereby the trial court convicted Babar alias Jani (the appellant) under Section 302 (b) P.P.C., and sentenced to Death for committing Qatl-i-Amd of Faisal Masih (the deceased), with the direction to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I further.

1. Feeling aggrieved by the trial court's judgment, Babar alias Jani, the appellant, has assailed his conviction and sentence by filing the instant jail appeal bearing Criminal Appeal No.43616-J of 2021. The trial court also referred M.R. No.103 of 2021 (The State. v. Babar alias Jani) to confirm the death sentence awarded to the appellant-Babar alias Jani. Both the matters arising from the same judgment of the trial court are being disposed of through a single judgment.

2. The prosecution story as contained in the private complaint (Ex. PB) filed by Amanat Masih (PW-1)-the complainant is that on 10.07.2017, at about 11:00 a.m, he was standing in front of Shahid Sweets to purchase vegetables in the meantime, his brother, Faisal Masih (the deceased), who was a rickshaw driver, came there on his rickshaw and stopped there for waiting the riders. In the meanwhile, the accused, Basharat Ali, along with Babar alias Jani, armed with Churri, came there while riding on a motorcycle Honda CD-70 and stopped the motorcycle near the rickshaw and after alighting from the motorcycle; the accused, Basharat, took Faisal Masih (the deceased) in (Japha) whereas the accused, Babar alias Jani (the appellant) inflicted Churri blows at the neck and right arm of Faisal Masih (the deceased); when the complainant along with his companions tried to step forward, the accused Basharat took out a pistol from the fold of his shalwar and extended life threats. After that, Faisal Masih succumbed to the injuries, whereas the accused persons fled away from the place of occurrence. The motive behind the occurrence was that Faisal Masih (the deceased) used to restrain the accused, Babar alias Jani, from developing illicit relations with his sister.

3. After the incident, the complainant reported the matter to the police through his written application (Ex. PA). After that, formal FIR (Ex. PF) was chalked out by Naveed Aslam, ASI (PW-4). After registering the case, the investigation was initially entrusted to Shabbir Hussain (retired S.I) (CW-1). After that, Ahmad Anees S.I (CW-5) and Baqar Raza, ASI (CW-6) conducted the investigation; they found the accused/appellant guilty and prepared a report under section 173 of Cr.P.C. Being dissatisfied with the result of the investigation, as the investigating officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file a private complaint (Ex. PB). After recording the cursory evidence of the complainant and having perused the record, the accused was found connected with the commission of the offence, so he was summoned to face the charge. After that, the learned trial court formally charged the appellant on 23.11.2020, to which he pleaded not guilty and claimed trial. The complainant, in support of his version, produced as many as nine (09) witnesses, whereas the rest of the witnesses were summoned as court witnesses, i.e., CW.1 to CW.6.

4. The ocular account, in this case, has come out from the statements of Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2)-the eye-witness, whereas Dr. Muhammad Ashfaq Ahmad (PW-8), who conducted the postmortem examination of Faisal Masih (the deceased) found the following injuries on his person:

INJURIES

1. An incised wound of 7x3.5 cm on the back of the neck., 8cm from the back of the ear, and 8cm from the midclavicular line; the wound was muscle-deep.

2. An incised wound of 7x3 cm on the left side of the upper neck and face, 2.5cm from the ear below, and 5cm from the lip margin. The wound was muscle-deep.

3. An incised wound on the back of chest 5x3cm starting from midline between two shoulders bone 17 cm below the tip of lift shoulder on the left side. The wound was 3.5cm deep.

4. An incised wound 3x5 cm on the right side of the back of the chest, 4cm from the midline, and 5cm from the tip of the shoulder bone. The wound was 2cm deep.

5. An incised wound of 5x2 cm on the right side of the back of the chest, 5cm from the midline, and 6cm from the fourth injury. The wound was 0.5cm deep (superficial).

6. There is an abrasion on the right side of the upper arm, 6cm from the axilla and 6cm in length.

7. An incised wound of 8x2cm on the upper part of the right thigh on the outer side. The wound was superficial.

After conducting the postmortem examination, the doctor opined that injuries Nos.1 to 4 collectively, whereas injuries Nos.3 and 4 were partially sufficient to cause death in the ordinary course of nature. The death occurred due to severe hemorrhage and injury to vital organs that led to shock and cardiopulmonary arrest.

The statements of the remaining prosecution witnesses are formal.

1. The learned Deputy District Public Prosecutor gave up PWs Muhammad Salik, 389/C, being dead, and Nazir Ahmad, 1728/C, being unnecessary, and closed the prosecution evidence after tendering reports of Punjab Forensic Science Agency and Serology Analysis (Ex. PN and Ex. PO).

2. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of Section 340(2) Cr.P.C. nor produced any evidence in his defence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition: -

"PWs have falsely deposed against me to blackmail me and to extort money from me and to strengthen the false case against me. I had not participated in the alleged occurrence. I have been falsely roped in this case. All the private PWs are inter-se related to deceased and each other. A false motive has been set up against me. False and fake recoveries have been planted against me just to strengthen the case. Actually no recovery has been effected from me and I have no links with the alleged fake recoveries. The witnesses mentioned in the FIR and complainant had not seen the occurrence and they do not know the actual culprit. Co-accused Basharat Ali has already been acquitted from this case. I am innocent in this case and I may be acquitted from this case."

1. After evaluating the evidence available on record in light of arguments advanced from both sides, the learned 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. Despite repeated calls, no one has entered an appearance on behalf of the appellant. So, Ms. Shahzadi Parveen, Advocate, is appointed as Defence counsel on behalf of the appellant at state expense.

3. We have given our anxious and most thoughtful consideration to both sides' rival submissions. We have minutely gone through the evidence on record.

4. As per the prosecution case, the incident took place at 11:00 a.m. on 10.07.2017 in front of Shahid Sweet situated at Farooq Ganj, Jandiala Road, Sheikhupura falling within the jurisdiction of Police Station City B-Division, Factory Area, District Sheikhupura and Faisal Masih, brother of Amanat Masih (PW-1)-the complainant, succumbed to the injuries at the spot. After the incident, Amanat Masih (PW-1)-the complainant, along with others, shifted the dead body of his brother Faisal Masih, the deceased, to the hospital. After that, the complainant went to the police station and reported the incident through the written application (Ex. PA) to Naveed Aslam A.S.I (PW-4), and FIR (Ex. PF) was chalked out at 11:35 a.m. The inter-se distance between the place of occurrence and the police station is only one kilometer. Amanat Masih (PW-1)-the complainant deposed during cross-examination that: -

"It is correct that we did not make phone call to Rescue 1122. We made phone call to Rescue 15, but I cannot produce the record regarding the same. It is correct that during my cross-examination against co-accused Basharat (since acquitted) I had deposed that we did not make phone call to Rescue 1122 and 15. Neither myself nor other cited witness sustained any injury during the occurrence. We took the deceased Faisal to DHQ Hospital Sheikhupura after the occurrence which took about fifteen minutes during shifting. Police officials came to the hospital. After dropping the dead body at DHQ Hospital Sheikhupura I went to the police station just after five minutes. I along with my uncle Waris Masih went to the police station. It took about five minutes to submit application for registration of case. Application for registration of case was got written by my uncle Waris Masih. It is correct that previously during cross-examination of co-accused Basharat (since acquitted) I deposed that I could not tell the name of scribe of application for registration of case. Application for registration of case was submitted with due consciousness. We did not make any consultation before submission of application for registration of case. It is correct that previously, during cross-examination of co-accused Basharat (since acquitted) I deposed that we submitted application for registration of case after due deliberation and the application was got written by one police official upon my direction."

The above deposition of Amanat Masih (PW-1), the complainant, reveals that he dishonestly improved his testimony. The scriber of the written complaint (Ex. PA), who was not known to the complainant in the earlier trial, was subsequently introduced by him as Waris Masih. The deposition of Amanat Masih (PW-1)-the complainant proves nothing substantial except he signed the information (Ex. PA), whereof FIR (Ex. PF) was registered. The FIR (Ex. PF) is the result of deliberation and consultation, which was also revealed from the inquest report (Ex. CW-1/B), wherein, in column No.3 relating to the date and time of receiving information about the death, the date 10.07.2017 was mentioned and after writing "" space was left blank. Shabbir Hussain (retired S.I) (CW-1)-the investigating officer has not mentioned the time of preparing the inquest report. Shabbir Hussain (retired S.I) (CW-1)-the investigating officer, deposed during the examination-in-chief, that the investigation was entrusted to him after the registration of the case and FIR (Ex. PF) was registered at 11:25 a.m. He (CW-1), along with Muhammad Ramzan/C, Muhammad Ashfaq/C (PW-9), and Muhammad Salik/C, went to the DHQ Hospital Sheikhupura; the dead body of Faisal Masih was lying in the Trauma Centre, where he captured photographs of the deceased with his mobile phone; he (CW-1) inspected the dead body and prepared its injury statement (Exh.CW.1/A), inquest report (Exh.CW.1/B) and also prepared an application (Exh.CW.1/C) for getting postmortem examination of the dead body of Faisal Masih, the deceased; he (CW-1) handed over police papers along with dead body to Muhammad Ashfaq constable (PW-9) for getting its autopsy. Whereas, during cross-examination, Shabbir Hussain (retired S.I) (CW-1) deposed that: -

"I went to the place of occurrence from the police station. I interrogated the matter at the place of occurrence. Thereafter, I may be went to the hospital for postmortem. It is incorrect to suggest that firstly I visited the hospital and thereafter I went to the place of occurrence."

Dr. Muhammad Ashfaq Ahmad (PW-8) deposed that on 10.07.2017, he was posted at DHQ Hospital Sheikhupura; on the same day, dead body of Faisal Masih was brought by Muhammad Ashfaq 1644/C (PW-9) at 12:15 PM and he conducted postmortem examination on the dead body of Faisal Masih at 06:20 p.m. Whereas, during cross-examination Dr. Muhammad Ashfaq Ahmad (PW-8) admitted that the dead body was received at 12:15 p.m, whereas police papers were received at 06:00 p.m. There was no delay on his part in conducting postmortem examination. The deposition of Dr. Muhammad Ashfaq Ahmad (PW-8) and perusal of contents of the postmortem report (Ex. PK) reveal that complete police papers were received at 06:00 p.m. on 10.07.2017, although Shabbir Hussain (Retired S.I) (CW-1), deposed that after registration of the case, he visited the hospital, prepared documents and referred the dead body along with documents to the hospital through Muhammad Ashfaq/C (PW-9). As per the postmortem report (Ex. PK), the time elapsed between death and postmortem was about 06 hours, whereas, from the time of occurrence, there is a delay of 07 hours and 20 minutes. Dr. Muhammad Ashfaq Ahmad (PW-8) stated that he issued postmortem report (Ex. PK) and also attested application for postmortem examination, injury statement, and inquest report relating to Faisal Masih, the deceased prepared by the I.O. If FIR was registered within 25 minutes, there is no plausible explanation as to why the postmortem examination was conducted with the delay. The delay in conducting the postmortem examination reflects that the FIR was recorded with the delay and was not recorded at the time it was claimed to be recorded. It appears that till the completion of the postmortem report, the FIR was not registered, which leads to the irresistible conclusion that the FIR was recorded with the delay and that the same cannot be used against the appellant as a corroborative piece of evidence.

1. There is another aspect of the case that leads to the conclusion that the incident was not witnessed by the prosecution witnesses, i.e., Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2)-the eye-witness. As per the prosecution case, Faisal Masih, the deceased, stopped his rickshaw in front of Shahid Sweets for the riders. In the meanwhile, Ijaz Masih (PW-2), the brother of the complainant, who was also a rickshaw driver, arrived with Chand Masih and Salamat Masih (given up PWs) and stopped their rickshaw in front of Shahid Sweet for riders. Meanwhile, Basharat (co-accused since acquitted) while riding on motorcycle C.D-70 came there, and the appellant (Babar alias Jani) pillion rider, having a knife in his hand; Basharat (since acquitted) stopped his motorcycle near the rickshaw of Faisal Masih (the deceased) and after getting off from motorcycle, Basharat (co-accused since acquitted) caught hold Faisal Masih and the appellant inflicted knife blows on the neck and the right arm of Faisal Masih. The complainant (PW-1), along with companions, stepped forward to rescue Faisal Masih, the deceased, then Basharat (co-accused since acquitted) took out a pistol from the fold of his Shalwar and threatened them not to step forward. Otherwise, they would be done to death. Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2)-the eye-witness, deposed in similar lines. Amanat Masih (PW-1)-the complainant deposed during cross-examination that: -

"Accused Basharat caught hold of deceased Faisal Masih whereas accused Babar present in the court gave churri blows upon right arms and neck of the deceased."

Ijaz Masih (PW-2)-the eye-witness also deposed during cross-examination that:-

"When accused Babar made churri blows upon neck and right arm of deceased Faisal till such period co-accused Basharat caught hold of deceased Faisal and thereafter, both of them fled away."

Whereas Dr. Muhammad Ashfaq Ahmad (PW-8) observed four injuries, i.e., injuries Nos. 1, 3, 4 and 5, on the back of Faisal Masih, the deceased. The doctor opined that injuries Nos. 1, 2, 3 and 4 collectively and 3 and 4 partially were enough to cause the death of a person in the ordinary course of nature and injuries Nos. 3 and 4 are on the back of the chest of Faisal Masih, the deceased. Dr. Muhammad Ashfaq Ahmad (PW-8) deposed during cross-examination that: -

"No injury was caused from the front side to the deceased."

Ijaz Masih (PW-2) deposed during cross-examination that: -

"We did not catch hold of deceased Faisal but we shifted him to the hospital at Rickshaw."

It is not possible that if Basharat (co-accused since acquitted) was holding Faisal Masih, the deceased, then the appellant could have inflicted the injuries on his back. Dr. Muhammad Ashfaq Ahmad (PW-8) stated explicitly that the injuries were not inflicted from the front; relatively the same were caused from the back. This also creates doubt about the genuineness of the version given by PWs, i.e., Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2)-the eye-witness. Thus, the prosecution version is contradicted by medical evidence, which affects the core of the prosecution's case and renders the witness's testimony liable to be discredited.

1. Per the prosecution case, the complainant (PW-1) for fetching vegetables was standing in front of Shahid Sweet at 11:00 a.m.; Faisal Masih (the deceased) reached in front of Shahid Sweets and also stopped in search of riders. Similarly, Ijaz Masih (PW-2), brother of the complainant, rickshaw driver, along with Chand Masih and Salamat Masih (given up PWs), also stopped in front of Shahid Sweet in search of riders. Meanwhile, Basharat (co-accused since acquitted) and the appellant arrived at the spot-on motorcycle C.D-70, and the occurrence occurred. The scaled site plan (Ex. PG) was prepared on the instructions of both the prosecution witnesses, i.e., Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2)-the eye-witness. Amanat Masih (PW-1)-the complainant deposed during cross-examination that: -

"It is correct that the owner of vegetable shop is not cited witness in the occurrence. It is correct that Shahid Sweet shop is lying across the road of vegetable shop. There might be distance of 60 feet between Shahid Sweet shop and vegetable shop. It is also correct that owner of Shahid Sweet shop is also not cited witness in the occurrence. ---------I was present in front of Shahid Sweet shop at 10:30 a.m. Thereafter, Ejaz Masih and Chand witnesses also reached there at 10.35/10.40 a.m. Ejaz Masih and Chand reached at the spot separately while riding upon Chingchi Rickshaws. Thereafter five minutes accused Babar (present in the court under police custody) and Basharat (since acquitted) reached at the place of occurrence."

Ijaz Masih (PW-2)-the eye-witness deposed during cross-examination that:-

"Distance between Shahid Sweet and vegetable shop is about 20 spaces. I along with Amanat and Chand were present in front of Shahid Sweet. It is correct that Shahid Sweet shop is lying towards western side of alleged place of occurrence. Witness Amanat masih was present prior to presence of other witnesses at Shahid Sweet shop. Deceased Faisal came about two minutes after my presence at Shahid Sweet shop. Thereafter accused Babar present in the court in custody and co-accused Basharat (since acquitted) came within period of one minutes after reaching of deceased Faisal at the place of occurrence. We did not manage to escape from place of occurrence after seeing the accused party."

Whereas, in the scaled site plan (Ex. PG and Ex.PG/1), the presence of the deceased was shown at point "B," while the complainant (PW-1) was shown at point "D," and PWs Ijaz Masih and Chand Masih were present at point "E" and from point "F," accused Babar (the appellant) and Basharat reached and after the incident, fled away. In the scaled site plans (Ex. PG and Ex.PG/1), the place of occurrence was shown in front of the vegetable shop of Malik Khalid Mehmood, and the deceased, prosecution witnesses and the accused were not present in front of Shahid Sweet. Muhammad Riaz (PW-5)-draftsman deposed during cross-examination that:-

"When I visited the place of occurrence complainant and witnesses were present there. Shahid sweet is situated on the Western Side of main road known as Jandiala Road leading from city Sheikhupura to Jandiala Sher Khan.-----------Place of occurrence is situated in front of vegetable shop owned by Malik Khalid Mehmood. There is a road on North East Side of place of occurrence whereas shops are situated in Northern Side. The distance between point A to Shahid Sweet is about 82 feet. I have shown point D in my scaled site plan from where complainant had seen the occurrence."

The evidence of both the prosecution witnesses, i.e., Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2), is unreliable and not trustworthy regarding their presence at the place of occurrence. Although, the site plan is not a substantive piece of evidence according to Article 22 of the Qanun-e-Shahadat Order, 1984, as held in the case of "Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others" (PLD 1992 SC 211), yet it reflects the view of the crime scene, and the same can be used to contradict or disbelieve eye-witnesses. So, the prosecution witnesses could not justify their presence at the spot. Thus, all the evidence about the presence of Amanat Masih (PW-1)-the complainant, and Ijaz Masih (PW-2) at the spot appears unreliable. With this background, the presence of the alleged eye-witnesses on the spot seems doubtful. This grave infirmity destroys the credibility of the evidence of witnesses. If the evidence of these witnesses is rejected as untrustworthy, nothing survives the prosecution case. These are the material contradictions in the ocular evidence and documentary evidence.

1. So far as the motive set up by the prosecution in the application (Exh. PA), FIR (Exh. PF), and private complaint (Exh. PB) and deposed about it by Amanat Masih (PW-1), the complainant and Ijaz Masih (PW-2)-the eye-witness, we have found it to have remained un-proved. The prosecution case in this regard was vague and could hardly inspire confidence. Amanat Masih (PW-1)-the complainant had deposed during cross-examination that: -

"It is correct that the name of my sister, with whom motive of illicit relations with accused Babar was attached, is not mentioned either in the FIR or in the private complaint and she also did not join the investigation."

Ijaz Masih (PW-2)-the eye-witness, had deposed during cross-examination that: -

"My sister with whom motive was attached that Babar was trying to have illicit relations with her did not appear during investigation."

Shabbir Hussain (retired S.I) (CW-1)-the investigating officer had deposed during cross-examination that: -

"The woman relating to motive part of the occurrence mentioned in the FIR was not produced before me by the complainant and her whereabouts and particulars were also not provided to me during investigation. I myself could not trace out her particulars as the complainant did not intent to disclose about her."

Ahmad Anees SI (CW-5)-the investigating officer deposed during cross-examination that: -

"Woman relating to motive part mentioned in the FIR was not produced before me by the complainant."

In the circumstances, we cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence. Even, the trial court has already disbelieved the motive set up by the prosecution.

1. As far as recovery of weapon of offence, i.e., churri (P-6) on the pointing of Babar alias Jani-the appellant, on 15.08.2020 and positive report of Punjab Forensic Science Agency (Ex. PO) regarding the presence of human blood on the blade of churri, are concerned, as per the prosecution case, on 06.08.2020, the accused was arrested. Upon the disclosure of the appellant on 15.08.2020, a churri (P-6) was recovered from the opposite railway station near Tower Railway, Sheikhupura. The statements of Syed Waqas Ali Naqvi 1393/C (CW-2) and Ahmad Anees S.I. (CW-5) and on perusal of the recovery memo. (Exh.CW-2/A) reveal that after the recovery of Churri (P-6) which was wrapped in shopper, same was taken into custody through sealed parcel. However, it is not mentioned in the Forensic DNA and Serology Analysis Report (Ex. P.O) that the sealed parcel was submitted. Besides, the Punjab Forensic Science Agency Report (Ex. PO) reveals that: -

"Property in this case was released to Ahmed Anees (SI) on August 19, 2020."

The swabs taken from the blade of Churri (P-6) were examined on October 29, 2020. If the property of the instant case was released to Ahmad Anees S.I. (CW-5) on 19.08.2020, then which case property was analyzed by the Analyst on October 29, 2020, creates doubt on the report of Punjab Forensic Science Agency, Lahore (Ex. PO). Ahmad Anees S.I. (CW-5)-investigating officer deposed during examination-in-chief that: -

"On 19.08.2020, Moharrar Muhammad Anwar handed me a parcel of churri for its onward transmission to the office of PFSA which I submitted in the concerned office, intact, on the same day. On returning to the police station, I recorded statement of Muhammad Anwar Moharrar under section 161 Cr.P.C. in this regard."

The entire prosecution evidence is silent on this aspect of the case. Thus, there was no link evidence to prove that the Churri (P-6) recovered from the accused was again received back from Ahmad Anees S.I. (CW-5)-the investigating officer by the moharrar and the same was re-deposited in the Malkhana or handed over to the Moharrar. It is necessary that as and when case property is taken out from Malkhana, necessary entry is made in the Malkhana Register and at the time when case property is re-deposited in Malkhana. Case property in murder cases must be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is re-deposited in the Malkhana, an entry in the Malkhana Register must be made. 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, "being," re-deposited in the Malkhana. Thus, it casts doubt on whether it is the same case property that was recovered from the accused and sent to Forensic Science Laboratory or it was the case property of some other case. The prosecution has failed to prove the case against the accused. Pointing out the above deposition of witnesses reveals that the prosecution did not prove that case property (P-6) was kept in safe custody. Due to the lack of this evidence, it cannot be held that the alleged recovered "Churri" (P-6) was re-deposited in Malkhana, and its benefit will go to the accused. Therefore, there is an absolute glaring contradiction in the testimony of the prosecution witnesses, and this vital contradiction remains unexplained. The case property produced in the court could not be related to the case property seized from the appellant's possession. There is, thus, no evidence to connect the Punjab Forensic Science Agency, Lahore (Ex. PO), with the Churri (P-6). All these circumstances taken together only deepen the shadows of doubt cast upon the case of prosecution.

1. Now, coming to the abscondance of the appellant till 06.08.2020, we have noticed that warrant of arrest (Ex. PL) was issued on 19.12.2017 and proclamation under Section 87 Cr.P.C. against the appellant was issued while mentioning address of the appellant in the same and Shabbir Hussain (retired S.I) (CW-1)-the investigating officer admitted during cross-examination about the address of the appellant that: -

"I did not visit the house of Babar accused. Volunteered that no such house of Babar could be traced out."

The deposition of Shabbir Hussain (retired S.I) (CW-1)-the investigating officer, creates doubts about the proceedings for declaring the appellant absconder by Shabbir Hussain (retired S.I) (CW-1)-the investigating officer. Moreover, considering our findings regarding the ocular account furnished by the prosecution, the medical evidence, and the evidence of motive, we believe that the absconding cannot be taken as proof of guilt if sufficient connecting evidence against the appellant is unavailable. In this respect, reference can be made to the "Barkat Ali v. Muhammad Asif and others" (2007 SCMR 1812). Even otherwise, by now, it is an established proposition of law that the absconding creates merely a suspicion in mind, but the same is not conclusive proof of guilt. Reliance in this respect is placed on the case of "Rasool Muhammad v. Asal Muhammad and another" (1995 SCMR 1373). However, mere absconsion of the accused is no ground to convict him if the prosecution has failed to prove its case against the accused.

1. All the above-narrated facts and circumstances lead this Court to only one conclusion: the whole prosecution case seems to be hinging upon conjectures and surmises and has severely failed to show incriminating, corroborative/independent evidence to bring home guilt of the accused in the case of capital charge. The learned trial court was unjustified in convicting the appellant while relying on untrustworthy, unsubstantiated evidence. The conviction passed by the learned trial court in the circumstances is against all canons of law recognized for dispensing criminal justice. Per the dictates of the law, the benefit of every doubt will be extended in favor of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it has been held as under: -

"The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favor of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

2025 P Cr. L J 48

[Lahore]

Before Muhammad Amjad Rafiq, J

Imran Ahmad Khan Niazi---Petitioner

Versus

The State and another---Respondents

Criminal Miscellaneous No. 46363-B of 2023, decided on 13th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 353, 186, 212, 506(ii), 172, 173, 174, 148 & 149---Assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of his public functions, harbouring offender, criminal intimidation, avoiding service of summons or other proceeding, preventing services of summons or other proceeding or preventing publication thereof, non-attendance in obedience to an order from public servant, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, confirmation of---Further inquiry---Gist of allegations in FIR transpired that SI/SHO Police Station concerned along with police contingent approached the residence of the petitioner in order to effect his arrest in execution of arrest warrants issued by Court in a complaint dated 03.11.2022 under Ss.167/173 of Elections Act, 2017 but faced resistance offered by a mob of 100/150 persons present outside the residence of the petitioner and thereby criminal force was used with intent to prevent or deter him from discharging his duty as public servant, and he was not allowed to effect arrest of the petitioner---Prosecution contended that it was done on the direction and instigation of the petitioner as reflected from a live press conference conducted by the petitioner in that respect later in the day---Prosecutor had submitted that accused had deliberately avoided the execution of warrants of arrest, therefore, committed offences mentioned in the FIR---However, it was apparent that sufficient material was not available on the record in support of allegations against the petitioner at present stage of the proceedings and propensity of police to take a shortcut by registering FIR instead of following the legal process was reflective of mala fide on their part, when law permitted them to file a report before the concerned judge with a complaint under Ss.172, 173, 174, P.P.C, against the petitioner for alleged disobedience to order of the Court---When an accused is arrested in execution of a warrant of arrest issued from outside jurisdiction, police is bound to produce the accused before the concerned Magistrate under S.86 of Cr.P.C. for reporting his execution of duty in accordance with law and in such situation Sessions Judge is authorized to grant 'an interim post arrest bail' to the arrested accused, if the offences are non-bailable, on furnishing surety by the accused to appear before the Court concerned on the date fixed---Thus, it was apparent that very registration of FIR was result of mala fide against the petitioner probably due to political victimization---Mala fide being a state of mind cannot always be proved through direct evidence, and it is often to be inferred from the facts and circumstances of the case---While deciding pre-arrest bail application merits of the case can also be touched upon and question of further inquiry can be stretched at such stage as well---Apparently petitioner had made out a case for grant of pre-arrest bail on the touch stone of further inquiry---Petition was allowed and ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Mst. Salima Bibi and others v. The State 2000 pcr.Lj 138; Subedar (Rtd.) Abdul Rehman and another v. The State 1981 pcr.Lj 61; Sahibzada Ahmad Raza Khan Qasuri and 4 others v. The State 1974 PCr.LJ 482; Maulana Fateh Muhammad v. The State PLD 1973 Lahore 874; Muhammad Shafique v. The State and another 2018 YLR 323; Imran Ahmad Khan Niazi v. Spl. Judge, A.T.C, and others PLD 2024 Lah. 486; Shahzaib and others v. The State PLD 2021 SC 886; Shabbir Ahmad v. The State PLD 1981 Lahore 599 and Noor Ahmad and another v. The State PLD 1982 Lahore 214 ref.

Muhammad Ayub v. (1) Muhammad Yaqub and (2) The State PLD 1966 SC 1003; Sadiq Ali v. The State PLD 1966 SC 589; Shabbir Ahmad v. The State PLD 1981 Lahore 599; Farhan Masood Khan v. State and others PLJ 2021 Cr.C. Lahore 550; Imran Ahmad Khan Niazi v. Spl. Judge, A.T.C, and others PLD 2024 Lah. 486; Zeeshan Kazmi v. The State 1997 MLD 273; Muhammad Shafique v. The State and another 2018 YLR 323; Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708; Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130; Javed Iqbal v. The State through Prosecutor General of Punjab and another 2022 SCMR 1424; Muhammad Umar Waqas Barkat Ali v. The State and another 2023 SCMR 330 and Abdul Rehman alias Muhammad Zeeshan v. The State and others 2023 SCMR 884 rel.

Barrister Salman Safdar for the Petitioner.

Rana Muhammad Imran Anjum, Deputy Prosecutor General with Rafaqat, SI for the Respondents.

Order

Muhammad Amjad Rafiq, J.---Petitioner while invoking concurrent jurisdiction of this Court under section 498 of the Code of Criminal Procedure 1898 (Cr.P.C.) sought pre-arrest bail in case FIR No.365/23 dated 05.03.2023 under sections 186, 353, 148, 149, 212, 506(ii), 172, 173 and 174 P.P.C., Police Station Race Course, Lahore on the ground that being ex-Prime Minister of Pakistan, he is facing serious security threats, therefore, cannot approach to the Court of Sessions without proper safety measures. Learned Counsel for the Petitioner stated that in a similar situation petitioner has succeeded to obtain an order from the Chief Commissioner Islamabad Capital Territory for an arrangement of fixation of his eight pre-arrest bail petitions with one time representation at a secured premises in Federal Judicial Complex G-11/4, Islamabad and is also making efforts for like arrangement in the Punjab, therefore, at least till then interim pre arrest bail may be granted. While relying on cases reported as "Sh. Zahoor Ahmad v. The State" (PLD 1974 Lahore 256); "Abdul Majid Afridi v. The State" (2022 Scmr 676); "Rais Wazir Ahmad v. The State" (2004 Scmr 1167) and "The State v. Malik Mukhtar Awan" (1991 Scmr 322), request of the petitioner was acceded to and ad interim pre arrest bail was granted to the petitioner on 11.07.2023.

1. Learned Counsel for the petitioner while highlighting a changed scenario responded that the petitioner now being convicted prisoner is serving out his sentence in Adyla Jail, Rawalpindi, therefore, cannot appear before this Court nor can seek bail in absentia before the Sessions Court; therefore, it is well within the legal framework to ask for decision of his bail petition on merits by this Court. He suggested in the course of arguments that appearance of accused before the Court for pre-arrest bail is essential only on the first date of hearing and thereafter, petition must be decided on merits even in his absence. Reliance he placed on cases reported as "Mst. Salima Bibi and others v. The State" (2000 pcr.Lj 138) and "Subedar (rtd.) Abdul Rehman and another v. The State" (1981 pcr.Lj 61) in this respect. While referring case reported as "Sahibzada Ahmad Raza Khan Qasuri and 4 others v. The State" (1974 PCr.LJ 482); submitted that it is only discretionary with the Court to insist on presence of accused at the time of confirmation of bail. The right course he suggested should be the forfeiture of bail bonds but Court cannot decline to decide the bail petition on merits in the absence of accused. Case reported as "Maulana Fateh Muhammad v. The State" (PLD 1973 Lahore 874) was referred in this respect. Finally relied on case reported as "Muhammad Shafique v. The State and another" (2018 YLR 323) wherein accused was under arrest in another case but his pre-arrest bail petition was decided on merits while touching the principle of fair trial based on access to justice. His submissions continued with the solicitation that if above request is not acceded to then case reported as "Farhan Masood Khan v. State and others" (PLJ 2021 Cr. C Lahore 550) comes into rescue of the petitioner with a settled legal premise that arrested in another case, accused shall not be deprived of decision of his bail petition on merits and his presence can be secured by his summoning from the police/judicial custody.

2. Learned Deputy Prosecutor General on the other hand opposed the above contentions on the ground that attendance of accused for pre-arrest bail on each and every date is the requirement of law and in his absence, petition cannot be decided on merits. Further states that only under trial prisoners (UTPs) can be summoned for their appearance in other cases but this facility is not available to the convicted prisoners, like the present petitioner. Upon which, learned Counsel for the petitioner switched over to his alternate prayer of securing the presence of petitioner through video link and in this respect referred the judgment dated: 21.09.2023 passed by Division Bench of Islamabad High Court, Islamabad in Criminal Revision No.127-2023 titled as "Imran Ahmad Khan Niazi v. The State, and others and judgment of Lahore High Court in PLD 2024 Lah. 486 titled as Imran Ahmad Khan Niazi v. Spl. Judge, A.T.C, and others Learned Deputy Prosecutor General, however, stated at bar that the petitioner is serving out his sentence as convicted prisoner in Adyla Jail, Rawalpindi.

3. By the statement of Learned Deputy Prosecutor General who is standing in representation of State/Government, the whereabouts of the petitioner has been brought into the notice of this Court, therefore, the very purpose of securing the presence of petitioner stands resolved because the wisdom of legislature for requiring the presence of petitioner before the Court for seeking pre-arrest bail of course is the assurance that accused being alive is within the country and has not absconded. Another reason for requiring presence of accused is providing of an opportunity to effect his arrest, though not in Court premises, after dismissal of his petition for pre-arrest bail. In a case reported as "Shahzaib and others v. The State" (PLD 2021 SC 886), Supreme Court of Pakistan deprecated the practice of dismissing the petitions for pre-arrest bail due to non-prosecution when counsel seeks dispensing with the attendance of accused; Court must provide an opportunity to explain reasons of his non-appearance on the date fixed in the petition. Similar principle was already breathing in our jurisprudence as laid down by Full Bench of this Court in case reported as "Shabbir Ahmad v. The State" (PLD 1981 Lahore 599). Though presence of the accused is essential on all subsequent dates including on stage of confirmation of his bail yet Court is authorized to dispense with his attendance; reliance is on "Noor Ahmad and another v. The State" (PLD 1982 Lahore 214).

4. While hearing divergent views and arguments of the parties, section 498-A Cr.P.C. needs to be read and examined again which is as under;

498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc.: Nothing in Section 497, or Section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction.

The section commands three essentials for grant of bail; which are (i) accused must be in custody or (ii) present before the court, and (iii) a case must be registered. Though above section uses two expressions for grant of bail i.e., 'to release on bail' or ' to be admitted to bail', probably for grant of bail under sections 497 and 498 of Cr.P.C. respectively, therefore, it is usually read that expression 'to release on bail' relates to custody and is used for post arrest bail while 'to be admitted to bail' connotes presence of accused in Court and is used for pre-arrest bail, yet it is a misconception which has already been clarified by the Supreme Court of Pakistan. The words "admitted to bail" are used both in sections 498 and 498-A Cr.P.C., therefore, Supreme Court of Pakistan while interpreting words "admitted to bail" used in section 498 of Cr.P.C. observed in case reported as "Muhammad Ayub v. (1) Muhammad Yaqub and (2) The State" (PLD 1966 SC 1003), as under;

"In Hidayatullah Khan's case, which was a Full Bench decision of the Lahore High Court, the view was undoubtedly expressed that the words "admitted to bail", do not bear the same connotation as "released on bail". This interpretation, however, was not accepted by the Federal Court in Khushi Muhammad's case and again, recently by this Court in Sadiq Ali's appeal. It was observed that these two expressions are synonymous as was borne out by their being used in the same sense in several sections of the Code. Reference in this section may be made to the language of sections 51, 62, 426, 427, 500 and 563(2) of the Code. The two expressions appear to have been used interchangeably in the Code and I do not see any reason to revise the opinion which I expressed in Sadiq Ali's case on this point, even after hearing the arguments advanced at the Bar in this case."

(Emphasis supplied)

In Sadiq Ali's case referred supra reported as "Sadiq Ali v. The State" (PLD 1966 SC 589), the Supreme Court of Pakistan in an unequivocal term explained that the words "admitted to bail" is used for any accused who is in custody or, not in custody; which is as follows;

"The words occurring in section 498 "direct that any person be admitted to bail" were emphasized and the opinion was expressed that the power of the Court extended not only to the grant of bail to persons who are in the custody of the High Court, or of an inferior Court or a police officer, but also includes a power to give directions in exceptional cases that persons should be admitted to bail, who are not in custody."

It is clear from the above dictum that an accused who being on interim pre-arrest bail is either present before the Court or in custody in another case can seek decision of his petition on merits.

1. Thus, it is clear that an accused who is granted interim pre arrest bail by the Court and directed to remain incessant in appearing before the Court on each and every date of hearing in the petition, becomes Custodia legis as declared in case reported as "Shabbir Ahmad v. The State" (PLD 1981 Lahore 599), which means that his custody in that case now would be regulated only by the Court until decision of his bail petition; therefore, in the interregnum if he is arrested in another case, the Court while considering him in custody as mentioned in section 498-A Cr.P.C., is authorized to grant or refuse him bail in his absence, or ask for his production before the Court as held in "Farhan Masood Khan v. State and others" (PLJ 2021 Cr.C. Lahore 550) or secure his attendance through video link as directed in case reported as PLD 2024 Lah. 486 titled as Imran Ahmad Khan Niazi v. Spl. Judge, A.T.C, and others. Similar expression is embedded in following case reported as "Zeeshan Kazmi v. The State" (1997 M L D 273);

"Now with the addition of section 498-A in the Code, in my view, it has become necessary that an accused who is not in custody should surrender himself before the Court when his bail application is taken up for hearing."

(Emphasis supplied)

On the same analogy, in a case reported as "Muhammad Shafique v. The State and another" (2018 YLR 323) wherein accused was under arrest in another case, this Court had decided his pre-arrest bail petition in his absence on merits while touching the principles of natural justice, fair trial and access to justice.

1. Every accused as Custodia legis, pending his bail petition, sometimes faces unavoidable situations which could restrict his appearance before the Court on subsequent dates; like if he fells ill, becomes busy in wedding of his children or due to death of his near and dears, or is abducted or kept in illegal confinement, or under threats to life, or his easy and free access to the Court is restricted in any manner, then Court must grant him an opportunity to justify his absence, or if request is made for his recovery from the illegal custody, the Court must help prevent abuse of process by issuing an appropriate direction to know his whereabouts. The logic behind exercise of such powers, of course, is to save the dignity of a person from rigors of illegal arrest as guaranteed under the Constitution because arrest always brings humiliation, sufferings and also lowers the person in the estimation of others. Police should not arrest an accused who wants to approach to the Court of law for seeking protection. If police or any other person extend any such threat as not to move to the Court or make a legal application for protection, such act is an offence under section 190 of Pakistan Penal Code, 1860 which is reproduced below for reference;

190:Threat of injury to induce person to refrain from applying for protection to public servant: Whoever holds out any threat of injury to any person for the purpose of inducing that person to refrain or desist from making a legal application for protection against any injury to any public servant legally empowered as such to give such protection, or to cause such protection to be given, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

1. As an additional note, this Court is not only a criminal Court as per section 6 of the Cr.P.C. but also a Constitutional Court under the Constitution of the Islamic Republic of Pakistan, 1973, therefore, unlike subordinate/inferior criminal Courts can pass appropriate order to protect the fundamental rights of a person with respect to life or liberty which does include to grant or decline pre-arrest bail in the absence of accused if he on subsequent dates in the petition is found to be in Police/judicial custody in another case. In the light of above legal position, the present petition for pre-arrest bail is being decided in the absence of accused/petitioner keeping in view the statement of learned Deputy Prosecutor General that petitioner at this moment of time is confined in Adyla Jail, Rawalpindi as convicted prisoner in other case, and has not been arrested so far in this case.

2. Gist of allegations in FIR transpires that Nadeem Tahir SI/SHO Police Station Secretariat Islamabad along with police contingent approached to the residence of the petitioner in order to effect his arrest in execution of arrest warrants issued by Additional Sessions Judge, West Islamabad in a complaint dated 03.11.2022 under sections 167/173 of Election Act, but faced a resistance offered by a mob of 100/150 persons present at zaman park outside the residence of the petitioner and thereby used criminal force with intent to prevent or deter him in discharging his duty as such public servant. In such situation of chaos, Senator Shibli Faraz appeared before him, kept him in wait for a long time and finally on the back of warrants wrote a note that "Received on 05.03.2023 @ 12.58 PM Chairman Imran Khan is not available. However, we will comply with all legal processes. Senator Shibli Faraz COS to Chairman", but he was not allowed to effect arrest of the petitioner.

2025 P Cr. L J 65

[Lahore]

Before Tariq Saleem Sheikh and Muhammad Amjad Rafiq, JJ

Amir Mahmood---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 44858-B of 2024, decided on 24th September, 2024.

Criminal Procedure Code (V of 1898)---

---- S. 498--- Drugs Act (XXXI of 1976), Ss. 23 & 27--- Drug Regulatory Authority of Pakistan Act (XXI of 2012), S. 27--- Unlicensed products, recovery of--- Pre-arrest bail, refusal of--- Complainant discovered five varieties of medicated cosmetics at a factory during raid, regarding which accused could not produce manufacturing license at the time of raid or any time afterwards--- Complainant seized the products vide Form 5 in presence of accused, who signed and thumb marked it--- Drug Testing Laboratory later confirmed that goods recovered were unregistered and contained allopathic drugs as active ingredients---On a tentative assessment of the available record, there was sufficient incriminating material against accused--- Apprehension of arrest of accused for an ulterior motive, such as humiliation and unjustified harassment, was a sine qua non for pre-arrest bail--- Complainant was a Drug Inspector performing duties in the area where factory of accused was located--- Complainant had no reason to falsely implicate accused in the case--- Pre-arrest bail was refused, in circumstances.

Cox v. Hickman 1860 8 HL Cas 268; Ross v. Parkyns 1871 R. 155; Majooji Moosaj v. Tayebali and others AIR 1933 Sindh 210; Karnidan Sarda and another v. Sailaja Kanta Mitra and another AIR 1940 Pat. 683; Raghunath Sahu and another v. Trinath Das and others AIR 1985 Orissa 8; The Province of West Pakistan v. G.V. Rattanchand Pir Mahfooz (a firm) PLD 1958 (W.P.) Karachi 251 and Essa E.H. Jaffer v. Nishat Ltd. PLD 1962 (W.P.) Kar 603 ref.

Muhammad Safdar and others v. The State 1983 SCMR 645; Zia-ul-Hassan v. The State PLD 1984 SC 192; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 rel.

Muhammad Zikariya Sheikh, with the Petitioner.

Ms. Raheela Shahid, DDPP, with Hassan Haider Shah/ Deputy Drug Controller and Ilyas/S.I.

Order

Tariq Saleem Sheikh, J.---Through this application, the Petitioner seeks pre-arrest bail in case FIR No.2590/2024 dated 02.07.2024 registered at Police Station Sabzazar, Lahore, for offences under sections 23 and 27 of the Drugs Act, 1976 (the "Drugs Act"), read with section 27 of the Drug Regulatory Authority of Pakistan Act, 2012 (the "DRAP Act").

1. The prosecution's case is that M/s SSI Marketing Network ("SSI") is engaged in the manufacturing, retail, wholesale, distribution, and marketing of various cosmetics and skincare products through online stores and other traditional business modes. On 30.03.2024, at about 11:00 a.m., the Drug Inspector of Allama Iqbal Town, Lahore (the "Complainant"), inspected SSI's manufacturing facility in the presence of its CEO, Amir Mahmood (the Petitioner), and witnesses. During the inspection, the Complainant found five medicated cosmetics for which the Petitioner could not produce a valid manufacturing licence under the Drugs Act. These products were: Aneeza Gold Beauty Cream (20 grams), Brido Luxury Gold Beauty Cream, Bio2You Cream, Clobetasol propionate powder (Batch No. MLCL0020123), and Clobetasol propionate powder (Batch No. MLCL0060522). The Complainant seized the products, collected samples for testing and analysis, and prepared Form-4 and Form-5, obtaining the Petitioner's signature and thumb impression. Following the inspection, SSI's finished goods store was sealed for violations of the Drugs Act and the DRAP Act. The Drug Testing Laboratory (DTL) subsequently reported that the products were unregistered and contained allopathic drugs as active ingredients. FIR No.2590/2024, supra, was lodged after the approval of the District Quality Control Board.

2. The Petitioner's counsel, Mr. Muhammad Zikariya Sheikh, Advocate, contends that Ijaz Ahmad is SSI's actual owner/proprietor. The Petitioner is merely an employee and has no concern with the manufacturing process. He performs his duties under Ijaz's direction. Mr. Sheikh relies on an instrument dated 28.04.2023 to support this contention.

3. Mr. Sheikh further argues that the present case falls within the ambit of the Pakistan General Cosmetics Act 2023, and that the Drug Inspector lacks the authority to inspect business premises related to cosmetics or seize any products. He contends that the Petitioner has been falsely implicated in this case due to ulterior motives. The Petitioner has already joined the investigation and is not required by the police for further probe. Therefore, he may be admitted to pre-arrest bail.

4. The Deputy District Public Prosecutor has vehemently opposed this application. She contends that the Petitioner is a partner in SSI and liable for all its acts and omissions. She asserts that the Petitioner and his co-accused manufactured the seized items without a valid licence, and the DTL report has confirmed that the items were unregistered. She further argues that the Drug Inspector has jurisdiction under section 18 of the Drugs Act to conduct the raid and inspect medicated cosmetics to ensure compliance with the Drugs Act and the DRAP Act. She has prayed for the dismissal of this bail application.

5. We have heard the learned counsel and examined the record. We first consider whether the Complainant/Drug Inspector lawfully conducted the raid at the SSI's premises.

6. The Drugs Act is a special law that regulates the import, export, manufacture, storage, distribution, and sale of drugs. Section 17 of the Act empowers the Federal or Provincial Government to appoint qualified individuals as Federal or Provincial Inspectors within designated local limits to enforce the Act. Section 18 outlines the powers conferred upon these Inspectors, while section 19 details the procedures they must follow when seizing any drug or article under section 18.

7. Clause (a) of section 18(1) of the Drugs Act authorizes the Inspector, with the permission of the licensing authority, to inspect any premises where drugs are manufactured (including the plant), the manufacturing process, the means used for standardizing and testing the drugs, and all relevant records and registers. Clause (b) of section 18(1) empowers the Inspector to inspect any premises where drugs are sold, stocked, exhibited for sale, or distributed, along with the storage arrangements and all relevant records and registers. Clause (f) of section 18(1) allows the Inspector to seize any drug, materials used in its manufacture, and any other articles, such as registers, cash memos, invoices, and bills, which he has reason to believe may provide evidence of an offence punishable under the Drugs Act, or the rules made thereunder. Clause (h) of section 18(1) grants the Inspector the authority to lock and seal any factory, laboratory, shop, building, storehouse, or godown, or any part thereof, where any drug is being manufactured, stored, sold, or exhibited for sale in violation of the said Act or the rules.

8. In 2012, Parliament enacted the DRAP Act (XXI of 2012) to establish the Drug Regulatory Authority of Pakistan ("DRAP") "to provide for effective coordination and enforcement of the Drugs Act and to bring harmony in inter-provincial trade and commerce of therapeutic goods, and to regulate, manufacture, import, export, storage, distribution, and sale of therapeutic goods." Section 7 of the Act describes the DRAP's powers and functions. Section 27(1) states that the offences shall be such as specified in Schedule-III, and section 27(2) provides that the prohibitions specified in Schedule-II shall be punishable in accordance with Schedule-III.

9. Schedule-V of the DRAP Act outlines the powers of Inspectors. Clause (6) of Schedule-V stipulates that the Provincial Inspector, upon finding any contravention of the DRAP Act or the Drugs Act, shall, unless otherwise directed by the Board, always refer the case to the Provincial Quality Control Board and seek orders regarding the action to be taken in response to such infringements. Section 29 states that the Inspector shall take cognizance of offences in the manner specified in Schedule-IV.

10. The Drugs Act defines the term "drug" in section 3(g) and the DRAP Act in section 2(xii) read with Schedule-I. The DRAP Act separately defines "medicated cosmetics" in Schedule-I. According to it, they include "cosmetics containing drugs and are defined as articles containing active drug ingredients intended to be rubbed, poured, sprinkled, or sprayed on, or introduced into, or otherwise applied to the human body or part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and articles intended for use as a component of any such articles; except that such term shall not include soap."

11. Parliament has also enacted the Pakistan General Cosmetics Act, 2023 (XLIII of 2023), to regulate the quality, standard, labeling, packing, manufacturing, storage, distribution, and sale of general cosmetics. Section 2(j) of the Act defines "general cosmetic" to mean "any substance intended to be used to clean, improve or change of complexion of skin, hair, nails or teeth and include the beauty preparations for make-up, perfume, skin cream, skin lotion nail polish, nail paint, soap, shampoo, shaving cream, gel, sun care and deodorant also include any article intended for use as a component of general cosmetics or any other item declared by the [Pakistan General Cosmetics Regulatory] Authority for the purposes of this Act."

12. Thus, the legal framework distinguishes between "medicated cosmetics" and "general cosmetics." The DRAP Act governs the former, while the latter falls under the Act of 2023. There is no overlap between these two categories.

13. In the present case, the Complainant seized the following five medicated cosmetics from the SSI's premises: (i) Aneeza Gold Beauty Cream (20 grams), (ii) Brido Luxury Gold Beauty Cream, (iii) Bio2You Cream, (iv) Clobetasol propionate powder (Batch No. MLCL0020123), and (v) Clobetasol propionate powder (Batch No. MLCL0060522). The DTL found ammoniated mercury in two items and clobetasol propionate in the other three. As adumbrated, the Provincial Drug Inspector has the authority to inspect the premises where he finds any contravention of the Drugs Act or the DRAP Act. The Petitioner's contention that the raid on SSI's factory is illegal is misconceived and therefore rejected.

14. The Petitioner asserts that he is merely an employee of SSI and that Ijaz Ahmad is the actual owner of the business. However, the public prosecutor disputes this claim, citing the Partnership Deed dated 28.04.2023, which states that both individuals entered into a partnership to form the firm. She also highlights clause 7 of the deed, which specifies that they would share the firm's profits and losses equally. In response, Mr. Sheikh contends that Ijaz Ahmad contributed the entire capital of Rs. 5,000,000/- to the firm, while the Petitioner's role was limited to operational services.

15. In business law, a partnership is a formal arrangement between two or more individuals to operate a business and share its profits and liabilities. There are various types of partnerships, each defined by the partners' roles, responsibilities, and liabilities. When no fixed period is prescribed for the partnership's duration, it is considered a partnership at will. Conversely, when the partners establish a fixed duration for the partnership, it ends upon the expiration of that period. If the partners continue the partnership after the fixed period has expired, it transitions into a partnership at will.

16. A Partnership of Skill and Capital, also known as a Partnership of Labour and Capital, is a business arrangement where one partner provides the financial capital, and the other contributes skill or expertise to manage the business. This mutually beneficial structure allows each partner to contribute what they possess in abundance. The capitalist partner supplies the necessary funds but typically does not engage in daily operations, while the working partner manages the business using their skills and knowledge.

17. he profit-sharing arrangement is based on the contributions of both partners and is defined in the partnership agreement. Due to their financial risk, the capitalist partner usually receives a portion of the profits proportionate to their investment. On the other hand, the working partner earns their share based on the value of their expertise and labour. These terms vary, and the agreement can allocate profits in any way that reflects the contributions and roles of the partners. This type of partnership allows both parties to focus on their strengths: the capitalist providing financial backing and the working partner managing the business. The clear division of responsibilities often leads to more efficient operations.

18. In Pakistan, partnerships are governed by the Partnership Act 1932 and, where it is silent, by the Contract Act 1872. Section 4 of the Partnership Act defines a "partnership" as "the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all." Consequently, a partnership must be formed to conduct a business, which must be legal. "Business" encompasses every trade, occupation, and profession and is not undertaken for personal pleasure. The essential feature of a partnership is the concept of mutual agency, where each partner acts as an agent for the others in business matters. In Cox v. Hickman, (1860 8 HL Cas 268), Lord Cranworth held that mutual agency is the definitive test for determining the existence of a partnership. This characteristic allows any partner to manage the partnership on behalf of all the others.

19. Section 5 of the Partnership Act stipulates that the partnership relationship arises from a contract, not status. Section 6 provides that in determining whether a group constitutes a firm or whether an individual is a partner, the actual relationship between the parties must be evaluated based on all relevant facts. Explanation 1 clarifies that sharing profits or gross returns from jointly held property does not automatically establish a partnership. Explanation 2 further states that receiving a share of business profits or payments linked to profits does not make someone a partner by itself. In particular, the following payments do not create a partnership: (a) by a lender of money to persons engaged in or about to engage in any business, (b) by a servant or agent as remuneration, (c) by the widow or child of a deceased partner, as an annuity, or (d) by a previous owner or part-owner of the business, as consideration for the sale of goodwill or a share thereof.

20. Section 6 of the Partnership Act appears to be based on the ruling of Jessel, M.R. in Ross v. Parkyns, [1871 R. 155]. He stated: "It is said (and about that there is no doubt) that the mere participation in profits inter se affords cogent evidence of a partnership. But it is now settled by the cases of Cox v. Hickman, Bullen v. Sharp and Mallwo, March and Co. v. Court of Wards, that although a right to participate in profits is a strong test of partnership, and there may be cases whereupon a simple participation in profits there is a presumption, not of law, but of fact, that there is a partnership, yet whether the relation of partnership does or does not exist must depend upon the whole contract between the parties, and that circumstance is not conclusive."

21. Given the above, merely describing the parties to a deed as "partners" does not by itself establish a partnership. In Majooji Moosaj v. Tayebali and others (AIR 1933 Sindh 210), the High Court ruled that even if parties describe themselves as "partners" in a written agreement, this does not constitute a partnership if their actual relationship is otherwise. Similarly, an agreement that purports to be something else may still be deemed a partnership if its essence and substance reveal such a relationship because the law considers the true nature of the agreement rather than its form. Likewise, in Karnidan Sarda and another v. Sailaja Kanta Mitra and another (AIR 1940 Pat. 683), it was held that the provisions of a document, as interpreted through proper legal analysis, determine its true character rather than the description given by the parties.

22. In Raghunath Sahu and another v. Trinath Das and others (AIR 1985 Orissa 8), the High Court observed that the word "partner" is often used in a specific deed in a loose sense, without regard to the essential elements of a legal partnership. A statement in a document that "nothing therein contained would constitute the parties as partners" will not necessarily prevent them from being considered partners under the law. Likewise, a mere declaration that the parties are partners does not automatically establish a legal partnership. Therefore, the existence of a partnership must be determined by considering all relevant facts and the three essential elements of a partnership, viz., (i) there must be an agreement between all concerned persons, (ii) the agreement must be to share the profits of a business, and (iii) the business must be carried on by all or any of the persons acting on behalf of all.

23. In The Province of West Pakistan v. G. V. Rattanchand Pir Mahfooz (a firm), [PLD 1958 (W.P.) Karachi 251], the defendant, Pir Mahfooz, contended that no firm existed under the name "Messrs G. V. Rattanchand Pir Mahfooz." He argued that Messrs G. V. Rattanchand and Co. was a separate entity conducting business at Boulton Market, while his firm, Pir Mahfooz, operated independently. Consequently, he claimed that the suit as filed was not maintainable. The High Court rejected this argument, emphasizing that the determination of a partnership's existence depends on the actual intent and conduct of the parties, as demonstrated by the facts of the case. While the right to share in the profits of a business is a strong indicator of a partnership, the Court clarified that the real test lies in the parties' intentions and behaviour, not solely in profit-sharing arrangements. Documents on record showed that Pir Mahfooz and G. V. Rattanchand referred to each other as partners. Additionally, correspondence between them and the Government revealed that they presented themselves as acting jointly, with one acting as an agent for the other - an essential element of partnership law. The defendant did not dispute that the actions of either party in their dealings with the Government would bind both parties, which further supported the existence of a partnership. Based on this evidence, the Court held that a firm under the name "G. V. Rattanchand Pir Mahfooz" existed.

24. In Essa E. H. Jaffer v. Nishat Ltd. [PLD 1962 (W.P.) Kar 603], the question arose whether the document in issue constituted a genuine partnership deed and whether, in pursuance thereof, the parties had become partners in the operation of two buses. The Court held that it is permissible for parties to structure profit-sharing in any manner they choose. For instance, one partner may agree to receive a fixed annual or monthly sum rather than a variable share of the actual profits. It further noted that it is not essential for establishing a partnership for the parties to agree to share losses. The determination of whether a partnership exists in any given case depends on the specific facts and circumstances, as per section 6 of the Partnership Act. In the case under discussion, the agreement (Exh.6) between the parties explicitly referred to itself as a "deed of partnership," and the parties described themselves as "working partner" and "financing partner." Further, the two buses were to be operated "on behalf of this firm." However, upon reviewing the agreement, the High Court found that the parties never intended to form a genuine partnership. The actual intent behind the arrangement was for the respondent to advance a loan of Rs. 20,000/- to the appellant-defendant, with an exorbitant interest rate of 48%. This arrangement was cleverly disguised as a partnership to circumvent the legal restrictions of the Sindh Money Lenders Act and the Usurious Loans Act.

25. In the present case, the existence of the Partnership Deed dated 28.04.2023 and the right of the Petitioner to participate in profits strongly indicates that the Petitioner and Ijaz Ahmad were partners in the firm. The Petitioner has not brought any material on record so far that may suggest he is not a partner in the firm.

2025 P Cr. L J 109

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan, J

Kashif Jamal---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 865 of 2022, heard on 5th August, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of seven hours in conducting post-mortem---Consequential---Accused was charged for committing murder of the son of complainant by firing---Post-mortem report showed that the dead body was received in the dead house on 11.03.2022 at 12:30 a.m. whereafter police papers were received by the Medical Officer at 05:00 a.m., then post-mortem was conducted with an unexplained delay of more than seven hours from the time of occurrence---Such delay was generally suggestive of a real possibility that time had been consumed by the police in procuring/planting eye-witnesses, involving the appellant-convict and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted---Appeal against conviction was accordingly allowed.

Irshad Ahmad v. The State 2011 SCMR 1190 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Night time occurrence---Source of light not established---Accused was charged for committing murder of the son of complainant by firing---Complainant and her husband furnished ocular account of the incident---Complainant stated in her cross-examination that source of light was not mentioned in her statement, upon which FIR was lodged before the police---Complainant further stated in her cross-examination that her examination-in-chief was recorded on 23.06.2022 but she had not mentioned the source of light therein---Complainant had also not stated in her examination-in-chief that she told the police about the source of light in her statement before police and police had not recorded such fact---Husband of complainant had also not disclosed the source of light at relevant time even in his examination-in-chief---Investigating Officer admitted in his cross-examination that no source of light was available at the spot and during the inspection he had not collected any source of light at the spot---In such circumstances, identity of the appellant in dark hours of the night at a distance of 88/90 feet, (as mentioned in site plan) when he was heading in opposite direction of the eye-witnesses, was not free from doubt---Mere recovery of electric bulb, later on, did not prove that same was lit at or near the place of occurrence at the time of occurrence---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence----Presence of eye-witnesses at the place and time of occurrence doubtful---Accused was charged for committing murder of the son of complainant by firing---Complainant stated in her cross-examination before the Trial Court that occurrence took place at 09:15 p.m.---Contrary to that, Investigating Officer stated in his cross-examination that as per version of complainant occurrence took place at 09:59 p.m. whereas as per version of complainant in other case FIR No.272/2022, occurrence took place at 09:30 p.m.---Such contradictions between time of occurrence were not ignorable, rather negated the presence of eye-witnesses---Eye-witness/second husband of the complainant and stepfather of deceased while appearing before the Trial Court had provided his residential address which was far away from the place where the occurrence took place---In these circumstances, presence of said witness at the time of occurrence and at the place of occurrence was not only doubtful, rather the whole story of the prosecution was neither plausible nor believable---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence----Dishonest improvements made by witnesses---Accused was charged for committing murder of the son of complainant by firing---Record showed that it was mentioned in the complaint, upon which FIR was lodged, that appellant made fire shot which hit on front of right shoulder of deceased---Initially, complainant mentioned in the FIR that appellant made single fire shot---Contrary to that, Medical Officer during postmortem examination on the dead body of the deceased observed two firearm entry wounds whereafter, complainant, in order to bring the case in line with the Medical Officer stated with dishonest improvement that appellant made two fire shots on the person of deceased---Likewise, husband of complainant stated in his cross-examination that he had stated before police that appellant made two fire shots which hit on the right shoulder of deceased, who was also confronted with his statement before police where seat of injury was not mentioned---Said witness stated in his cross-examination that he had stated in his statement before police that appellant armed with .30-bore pistol came out of a house, who was confronted with his statement wherein words 'came out' were not mentioned---Said witness also stated in his cross-examination that he had stated before police that they took the deceased to BBH Hospital, who was confronted with his statement before police wherein such fact was not recorded---Such dishonest improvements of both the eye-witnesses not only shattered their credibility, rather negated their presence at relevant time---Appeal against conviction was accordingly allowed.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence----Motive not proved---Accused was charged for committing murder of the son of complainant by firing---Motive of the occurrence as stated by the complainant before the Trial Court was that about one year prior to the present occurrence appellant had a quarrel with her after entering into her house---Said motive showed that appellant had grudge against the complainant but despite her claimed presence at the time of occurrence and at the place of occurrence, she did not receive even a single scratch on her body which negated her presence at the relevant time---Had complainant been present at the time of occurrence she would have been prime target of the appellant due to the alleged motive---Appeal against conviction was accordingly allowed.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Negative forensic report---Accused was charged for committing murder of the son of complainant by firing---Record showed that pistol .30-bore was recovered on pointing out of the appellant---However, in presence of negative report of Forensic Science Agency such recovery was not only inconsequential rather drew an adverse inference---Appeal against conviction was accordingly allowed.

(g) 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 he would be entitled to its benefit not as a matter of grace or concession but as of right.

G.M. Shah and Sardar Gul Nawaz Khaliq for Appellant.

Naveed Ahmad Warraich, DDPP with Arif, Inspector for the State.

Muhammad Afzal Khan Jadoon, Asif Mahmood Haider and Arfia Saadat with Complainant (Abida Parveen) for the Complainant.

Date of hearing: 5th August, 2024.

Judgment

Sadaqat Ali Khan, J.---Appellant (Kashif Jamal) has been tried by the trial Court in case FIR No.271, dated 11.03.2022, offence under Section 302 P.P.C., Police Station Civil Lines, District Rawalpindi and was convicted and sentenced vide judgement dated 20.10.2022 as under:-

Kashif Jamal (appellant)

U/S 302(b) P.P.C. Sentenced to imprisonment for life as Ta'zir for committing Qatl-i-Amd of Hassan Ali (deceased) with compensation of Rs.5,00,000/- (recoverable as arrears of land revenue) payable to legal heirs of the deceased under section 544-A Cr.P.C. and in default whereof to further undergo simple imprisonment for 6-months.

Benefit of Section 382-B Cr.P.C. was extended to him.

1. Brief facts of the case have been stated by the complainant Abida Parveen PW-6 in her statement before the trial Court, which is hereby reproduced for narration of the facts as under:-

"States that on 10.03.2022 at 09:59 pm, I, Ghulam Raza, Muhammad Ubaid and Sajida Bibi were present in my house. My son Hassan Ali had gone out of the house. There was report of fire shots from house of Raheel Khalid. I, Ghulam Raza, Sajida Parveen and Muhammad Ubaid came out of our house. Kashif Jamal accused came out from his house. My son had reached the Pulli. Kashif accused was having pistol in his hand. Kashif accused present in Court in our view resorted to firing, which hit right side of my son below shoulder on front. Again said one fire shot hit shoulder and second shot hit little bit above shoulder of my son. My son fell down after sustaining injuries. I, Sajida Parveen, Ghulam Raza and Muhammad Ubaid witnessed the occurrence. We lifted my son and were shifting him to the hospital. We reached BBH hospital, Rawalpindi. After some time police came to the hospital and recorded my statement Ex-PF, which was read over to me and I signed and thumb marked Ex-PF/1 on the same in token of its correctness. Kashif accused a year ago picked up fight with me after entering my house. Due to this reason Kashif accused fired at my son."

1. After hearing learned counsel for the parties as well as learned DDPP, and on perusal of record with their able assistance, it is observed as under:-

I. Facts of the case have been given in preceding para of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.

II. Hassan Ali was done to death at "pulli" near his house on 10.03.2022 at 09:59 p.m. whereafter FIR was lodged on the same night at 12:00 a.m. (11.03.2022) on the statement of her mother Abida Parveen/complainant PW-6 who and her husband Ghulam Raza Khan PW-7 claim themselves to be the eye-witnesses of the occurrence.

III. Abida Parveen/complainant PW-6 has contracted second marriage with Ghulam Raza Khan PW-7 who is stepfather of Hassan Ali (deceased).

IV. According to the FIR, occurrence took place on 10.03.2022 at 09:59 p.m. whereafter FIR was lodged at 12:00 a.m. (11.03.2022) with an unexplained delay of two hours. Post-mortem report (Exh.PB) shows that the dead body was received in the dead house on 11.03.2022 at 12:30 a.m. whereafter police papers were received by the Medical Officer (Dr. Muhammad Junaid PW-2) at 05:00 a.m. then post-mortem examination was conducted at 05:10 a.m. (11.03.2022) with an unexplained delay of more than seven hours from the time of occurrence (09:59 p.m. on 10.03.2022). Such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring/planting eye-witnesses, involving the appellant and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted. (2011 SCMR 1190) "Irshad Ahmad v. The State".

V. Both the eye-witnesses (Abida Parveen/complainant PW-6 and Ghulam Raza Khan PW-7) have stated in their examination-in-chief before the trial Court that Hassan Ali (deceased) had gone out of the house (not returned home till 09:59 p.m. on the night of 10.03.2022), they came out of their house after hearing fire shots, Kashif Jamal (appellant) also came out from the house of Raheel Khalid (not PW), Hassan Ali (deceased) had reached the "pulli", in their view, appellant caused firearm injuries on his (deceased) person. Points Nos.3 and 4 of rough and scaled site plans of the place of occurrence show the presence of Abida Parveen/complainant PW-6 and Ghulam Raza Khan PW-7 which are at a distance of 60 paces/90 feet and 59 paces/88 feet from points i.e. No.1 (where Hassan Ali, deceased was present) and No.2 (where appellant statedly was present at "pulli"), as per prosecution story deceased was coming to his house. According to the site plans of the place of occurrence he (Hassan Ali, deceased) was facing toward the direction of his house whereas, appellant was going towards south of the "pulli" opposite direction of the house of the deceased facing toward south whose back was toward the house of the deceased and the eye-witnesses. Abida Parveen/ complainant PW-6 stated in her cross-examination that source of light is not mentioned in her statement (Exh. PF, upon which FIR was lodged) before the police. She further stated in her cross-examination that her examination-in-chief was recorded on 23.06.2022 but she has not mentioned the source of light therein. She has also not stated in her examination-in-chief that she told the police about the source of light in her statement before police and police had not recorded. Ghulam Raza Khan PW-7 has also not disclosed the source of light at relevant time even in his examination-in-chief. Aziz Sultan SI PW-10 admitted in his cross-examination that according to the statement of Waqas Khalid JFS PW-1, no source of light was available at the spot and during the inspection he had not collected any source of light at the spot. In these circumstances, identity of the appellant in dark hours of the night at a distance of 88/90 feet when he was heading opposite to the direction of the eye-witnesses discussed above is not free from doubt. Mere recovery of electric bulb, later on, does not prove that same was litting at or near the place of occurrence at the time of occurrence unless eye-witness(s) discloses the source of light in the FIR as well as in his examination-in-chief before the trial Court.

VI. Abida Parveen/complainant PW-6 stated in her cross-examination before the trial Court that occurrence took place at 09:15 p.m. Contrary to this, Aziz Sultan SI PW-10 stated in his cross-examination that as per version of Abida Parveen/complainant PW-6 occurrence took place at 09:59 p.m. whereas as per version of Rohail Khalid (complainant in case FIR No.272/2022, P.S. Civil Lines, Rawalpindi, the story of this FIR has also been disbelieved by this Court) occurrence took place at 09:30 p.m. This contradiction between time of occurrence is also not ignorable, rather negates the presence of eye-witnesses.

VII. It is mentioned in the complaint (Exh. PF, upon which FIR was lodged) that appellant made fire shot which hit on front of right shoulder of Hassan Ali (deceased). Abida Parveen/complainant PW-6 also stated in her cross-examination that in her statement (Exh. PF) before police, police has mentioned one fire shot, stated in volunteer portion that two fire shots were made upon her son (Hassan Ali, deceased), she further stated in her cross-examination that she had stated in her statement (Exh. PF) before the police that one fire shot hit on the shoulder and second fire shot also hit little bit above shoulder of her son (Hassan Ali, deceased), who was confronted with her statement (Exh. PF) where second fire shot is not mentioned. Initially, complainant (Abida Parveen PW-6) got mentioned in the FIR that appellant made single fire shot. Contrary to this, Medical Officer during postmortem examination on the dead body of the deceased (Hassan Ali) observed two firearm entry wounds whereafter, complainant (Abida Parveen PW-6) in order to bring the case in line with the medical officer stated with dishonest improvement that appellant made two fire shots on the person of deceased (Hassan Ali). Likewise, Ghulam Raza Khan PW-7 stated in his cross-examination that he had stated before police that appellant made two fire shots which hit on the right shoulder of Hassan Ali (deceased), who was also confronted with his statement (Exh. DA) before police where seat of injury is not mentioned. He (Ghulam Raza Khan PW-7) stated in his cross-examination that he had stated in his statement before police that Kashif Jamal (appellant) armed with .30-bore pistol came out of his (Raheel Khalid) house, who was confronted with his statement (Exh. DA) wherein words 'came out' are not mentioned. He (Ghulam Raza Khan PW-7) also stated in his cross-examination that he had stated before police that they took the deceased to BBH Hospital, who was confronted with his statement (Exh. DA) before police where it was not so recorded. Above discussed dishonest improvements of both the eye-witnesses not only shatter their credibility, rather negate their presence at relevant time. (2008 SCMR 06) "Akhtar Ali and others v. The State".

VIII. Motive (disbelieved by the trial Court) of the occurrence as stated by the complainant before the trial Court is that about one year prior to the present occurrence appellant had a quarrel with her after entering into her house. This motive shows that appellant had grudge against the complainant but despite her (Abida Parveen/complainant PW-6) claimed presence at the time of occurrence at the place of occurrence, she did not receive even a single scratch on her body which negates her presence at the relevant time. Had she been present at the time of occurrence she would have been prime target of the appellant with above said motive, blessing her with unbelievable courtesy and mercy shown to her by the accused leaving her unhurt knowing well that she would ultimately depose against him is an unbelievable story of the prosecution. (2017 SCMR 596) "Mst. Rukhsana Begum and others v. Sajjad and others".

2025 P Cr. L J 148

[Lahore]

Before Asjad Javaid Ghural and Ali Zia Bajwa, JJ

Mst. Sanam Javed---Petitioner

Versus

Special Judge Anti-Terrorism Court, Gujranwala and 3 others---Respondents

Criminal Revision No. 39439 of 2024, heard on 10th July, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439-A, 561-A & 167---Penal Code (XLV of 1860), Ss. 302(b), 324, 353, 427, 431, 186, 148, 149, 505, 188 & 109---Punjab Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, use the criminal force or assault on public servant while he was performing his duty, causes damage or loss of fifty rupees or more through mischief, mischief by injury to a public road, bridge, river, or channel, obstructing a public servant in the performance of their duties, rioting armed with deadly weapon, unlawful assembly, creation or promotion of hatred, enmity, or ill-will between different groups, disobeying an order given by a public servant, abetment, dissemination of rumours, act of terrorism---Physical remand, extension in---Legality---Admittedly, trial in said case to the extent of some of the accused had been concluded, whereas, one of the nominated accused, who was declared proclaimed offender, was subsequently arrested on 08.05.2024 and thereafter on 30.05.2024, he got recorded his statement under S.337(1), Cr.P.C, before the Area Magistrate, whereby he involved the petitioner along with certain other persons to the extent of abetment---It was stated at bar by the head of the Joint Investigating Team as well as Investigating Officer that except the said statement of the accomplice, there was no other incriminating material to connect the petitioner with the said case---Record showed that accomplice remained on physical remand for twenty two days before recording of such statement, therefore, it could not be said that he got recorded the statement voluntarily and without any coercion---If the statement of the accomplice was given weightage even then at the most it was a case of abetment against the petitioner and it was not understandable, for what purpose in the charge of abetment, physical remand of an accused was required---Only purpose of seeking remand of the petitioner was to prolong her custody---Such aspect had been overlooked by the trial Court while dealing with the request of physical remand of the petitioner and granted the physical remand in a mechanical manner---Allegedly, during the period of physical remand, petitioner got recovered a USB containing her videos and one mobile phone of her husband and from the transcripts of the videos available in the USB, it was alleged that the petitioner instigated the co-accused to commit the occurrence---First of all, it was to be noted that the petitioner was behind the bars since 10.05.2023 and admittedly her mobile phone was already taken into possession in case FIR No.96/23---Mobile phone which was allegedly recovered at the instance of the petitioner undisputedly belonged to her husband---Investigating Officer confirmed that the same was active when taken into possession, and when confronted how the same could be connected with the petitioner, prosecution submitted that during investigation petitioner admitted that she occasionally used the said mobile phone---Merely on the basis that petitioner occasionally used mobile phone of her husband, such mobile or the data contained therein could not be used against her---Even otherwise, from the said mobile phone no incriminating material connecting the petitioner with the alleged crime was recovered---Second piece of evidence procured by the Investigating Officer was the USB---Petitioner was continuously in custody of police on the basis of different criminal cases/ detention orders since 10.05.2023 and the FIR of the said case was also registered on the same date---Moreover, it was beyond comprehension that how the petitioner transferred the data of her social media accounts in the USB, when she was already in police custody---Even otherwise, transcript of the USB had been placed and bare perusal of the same showed that it was downloaded from Youtube and her other purported social media accounts, which were active since the day of the occurrence, therefore, it could safely be said that the USB was planted upon the petitioner just to create evidence against her in the case---No date and time of the purported videos of the petitioner was mentioned as such it could not be said with any degree of certainty that the same were prior or after the protest---Besides the above, Joint Investigating Team Head, in categorical terms admitted that mobile phone of any of the co-accused was not taken into possession, so as to confirm that on account of the instigation of the petitioner on social media forum, he/they committed the said occurrence---In such backdrop, Court was of the view that on the basis of evidence created/procured against the petitioner, she could not be connected with the alleged occurrence in any eventuality---Mala fide of the Investigating Officer was also apparent from the fact that in the so-called statement of the accomplice he named a number of persons who instigated him and other party members to commit the crime but he only caused the arrest of the petitioner and one other female and for the rest of the accused he did not give any weightage to the statement of the accomplice---In such view of the matter, it could safely be said that the statement of the accomplice was procured with the sole purpose to confine the petitioner as she had been released on bail in all other cases registered against her---Petition was allowed, in circumstances and the petitioner was discharged from the said case.

Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; PLD 2005 SC 86; 2009 SCMR 181; Muhammad Sultan v. Muhammad Raza and others 2020 SCMR 1200; Muhammad Bashir v. SHO, Okara Cantt. and others PLD 2007 SC 539 and Ammad Yousaf v. The State and another PLD 2024 SC 273 rel.

Barrister Mian Ali Ashfaq, Rana Abdul Maroof Khan, Tahir Abbas Bhatti, Ali Raza Kanjan and Muhammad Khizar Saeed for the Petitioner.

Moeen Ali and Hafiz Asghar, Deputy Prosecutors General with Shahid S.P. and Tahir Inspector for the State.

Rana Umar Abrar Khan, A.A.G.

Date of hearing: 10th July, 2024.

Judgment

Asjad Javaid Ghural, J.--- Through this criminal revision petition under Sections 435 and 439 Cr.P.C. the petitioner being accused in case FIR No.823/23 dated 10.05.2023, in respect of offence under Sections 302, 324, 353, 427, 431, 186,148,149,505,188 and 109 P.P.C. read with Section 16 of the Punjab Maintenance of Public Order Ordinance, 1960 and Section 7 of Anti-Terrorism Act, 1997, registered at Police Station Cantt. Gujranwala, has prayed as under:-

"It is therefore, most respectfully prayed that in the supreme interest of justice, by accepting the instant criminal revision petition; this Honorable court may be pleased to set-aside the order dated 14.06.2024 passed by the learned Special Judge, Anti-Terrorism Court, Gujranwala (Respondent No.1) being void, illegal, unconstitutional, without merits and the petitioner may kindly be discharged forthwith from this case in the supreme interest of justice.

Any other relief which this Honourable Court deems fit and proper may also be granted."

1. Admitted facts necessary for disposal of instant petition are that the petitioner is not named in the aforesaid criminal case and was subsequently implicated in the said case on the basis of disclosure of co-accused/approver Karim Hasan, which was recorded on 30.05.2024 i.e. after more than one year of the registration of the case. The petitioner was produced before the Judge, Anti-Terrorism Court, Gujranwala (ATC), who initially granted her four days physical remand vide order dated 10.06.2024. After exhausting the said period, the Investigating Officer made a request for further physical remand which was acceded to by the ATC and eleven days physical remand was granted vide impugned order dated 14.06.2024, which is subject matter of this criminal revision.

2. Heard. First of all, we would like to dilate upon the objection of the learned Law Officer that since the period of physical remand granted by way of impugned order has already been elapsed, the petitioner was ordered to be sent on judicial remand and report under section 173 Cr.P.C. has been submitted in the Trial Court, as such instant petition has become infructuous. We are not in agreement with this submission for more than one reasons. Firstly, in the prayer clause the petitioner sought her discharge from the said case while her learned counsel also addressed arguments on the plea of discharge. Secondly, Section 439 Cr.P.C. conferred a very vide jurisdiction upon this Court to examine the vires of any order/proceedings for which the record of the lower court was requisitioned or which otherwise comes to its knowledge. While exercising such jurisdiction, it is the duty of the Court to correct manifest illegality or to prevent gross miscarriage of justice. In the case reported as "Mushtaq Ahmad v. The State (PLD 1966 SC 126)", the Apex Court observed as under:-

"Under section 439 of the Criminal Procedure Code the High Court has a power to interfere upon information in whatever way received, as the section clearly says that it may do so in any case in which it has itself called for the record or which has been reported for orders or "which otherwise comes to its knowledge". These are words of wide import. In the present case the record of the case was placed before the learned Judge in the course of his inspection and the facts of the case thus came to his knowledge. Under this section the High Court has also the right to exercise its power on its own initiative and there can be no warrant for the proposition that the High Court is debarred from examining the record suo motu."

Similarly, in case reported as "Dr. Waqar Hussain v. The State (2000 SCMR 735)" it has been laid down as under:-

"So far as the power of the High Court under section 439, Cr.P.C. are concerned, it may be stated that it is not a power only but a duty whenever facts for its jurisdiction are brought to the notice of the Court, or otherwise come to its knowledge because the revisional jurisdiction is in the nature of corrective jurisdiction."

Thus we can safely say that the powers conferred upon this Court under Section 439 Cr.P.C. are not merely a "toothless paper tiger" rather a duty to satisfy itself regarding the correctness, legality or propriety of any order passed by the lower court. The facts discussed below would clear the dust why this Court constrained to exercise its revisional jurisdiction .

1. Admittedly, trial in the aforesaid criminal case to the extent of some of the accused has been concluded, whereas, one of the nominated accused namely Karim Hassan, who was declared proclaimed offender, was subsequently arrested on 08.05.2024 and thereafter on 30.05.2024, he got recorded his statement under section 337(1) of Cr.P.C. before the Area Magistrate, whereby he involved the petitioner along with certain other persons to the extent of abetment. It was categorically stated at bar by the head of the Joint Investigation Team (JIT) as well as Investigating Officer that except the aforesaid statement of the accomplice, there was no other incriminating material to connect the petitioner with the aforesaid case. It is a matter of record that accomplice remained on physical remand for twenty two days before recording of such statement, therefore, it cannot be said that he got recorded the statement voluntarily and without any coercion. In case reported as "Mian Muhammad Nawaz Sharif v. The State (PLD 2009 SC 814)", the Apex Court discarded the statement of accomplice while observing that:-

"It is understandable that an accused becomes an approver on motivation of self-interest to save his own skin. The circumstances in the present case that led P.W. to become an approver indicate that he was not a free agent. He was taken into custody by the Army soon after the incident and remained there for about one month and was then in police custody for about 10 days, during which he was tortured to the extent that he feared that 'he would die of shock'. Notwithstanding such complaint made to the Trial Court, he was again sent to police remand for further 3 days which ended a day before he became approver."

Moreso, in the instant occurrence one person namely Rashid Maqbool was allegedly murdered whereas multiple police officials sustained injuries. Proviso to Section 337(1) of Cr.P.C. reads as under:-

"[Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or as the case may be of the heirs of the victim]"

It is thus manifestly clear from the above proviso that an accused could not tender pardon in hurt or qatl cases without the permission of victim or the legal heirs of the deceased, the case may be. In the instant case, Rashid Maqbool was the deceased and according to the list furnished by the SHO P.S. Cantt. Gujranwala, the deceased survived by his father, mother and sister, whereas, he has divorced his wife 1 ½ years before but no document in the shape of divorce deed or divorce effectiveness certificate in support of this version was made part of the record. Furthermore, no report from the revenue authorities or the concerned Councilor or Lumberdar was secured for the confirmation of the legal heirs of the deceased. Moreover, bare perusal of the affidavits of the legal heirs it came on surface that the same were not attested by the Oath Commissioner to certify that contents of said documents were stated on oath or solemn affirmation was made before him. In the absence of such certificate, value of so called affidavits of the purported legal heirs of the deceased is nothing more than a piece of paper. Since the statement of the accomplice was recorded in derogation of the proviso to Section 337(1) of Cr.P.C. as such the same was not admissible piece of evidence.

1. It is now in the above context, we have to see as to whether the Judge, ATC was justified in granting physical remand of the petitioner. The Apex Court as well as this Court time and again cautioned the courts below for granting physical remand of an accused in a routine or perfunctory manner. Unfortunately, it seems that with the passage of time the remand granting Courts went into deep slumber and need to be shaken again. The purpose of granting physical remand is to dig out the truth and collect further evidence which is not possible without the presence of an accused. A duty is bestowed upon a Court dealing with such request of remand to maintain balance between the personal liberty of the accused and the investigational right of the police. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) guarantees that no person would be deprived of life or liberty save in accordance with law, whereas, Article 10 of the Constitution provides safeguards as to the arrest and detention. It is, therefore, in the above context that in Part B, Chapter 11-B, Volume-3 of Rules and Orders of Lahore High Court, Lahore following principles are laid down for the guidance of all the concerned for granting physical remand:-

"(i) Under no circumstances should an accused person be remanded to Police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the inquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.

(ii) When an accused person is remanded to Police custody the period of the remand should be as short as possible.

(iii) In all ordinary cases in which time is required by the Police to complete the inquiry, the accused person should be detained in magisterial custody.

(iv) Where the object of the remand is merely the verification of the prisoner's statement, he should be remanded to magisterial custody.

(v) An accused person who has made a confession before a Magistrate should be sent to the Judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person, who has been produced for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody."

Here in the instant case, even if the statement of the accomplice is given weightage even then at the most it is a case of abetment against the petitioner and we are unable to understand, for what purpose in the charge of abetment, physical remand of an accused was required. The conclusion is inescapable that the only purpose of seeking remand of the petitioner was to prolong her custody. Unfortunately, this aspect has been overlooked by the learned Judge, ATC while dealing with the request of physical remand of the petitioner and granted the physical remand in a mechanical manner, while ignoring binding pronouncements of the Apex Court.

1. Learned Law Officer laid much emphasis that during the period of physical remand, the Investigating Officer showed progress and the petitioner got recovered a USB containing her videos and one mobile phone of her husband and from the transcripts of the videos available in the USB, it is manifestly vivid that the petitioner instigated the co-accused to commit the occurrence. First of all, it is to be noted that the petitioner was behind the bars since 10.05.2023 and admittedly her mobile phone was already taken into possession in case FIR No.96/23, registered at P.S. Sarwar Road, Lahore. The mobile phone which was allegedly recovered at the instance of the petitioner undisputedly belongs to her husband. Investigating Officer, in attendance, confirmed that the same was active when taken into possession, when confronted how the same can be connected with the petitioner, learned DPG submitted that during investigation she admitted that she occasionally used the said mobile phone. Merely on that basis that the petitioner occasionally used mobile phone of her husband, such mobile or the data contained therein cannot be used against her. Even otherwise, from the said mobile phone no incriminating material connecting the petitioner with the alleged crime was recovered. Second piece of evidence procured by the Investigating Officer was the USB. As has been discussed supra the petitioner was continuously in custody of police on the basis of different criminal cases/ detention orders since 10.05.2023 and the FIR of the aforesaid case was also registered on the same date. It is beyond comprehension that how the petitioner transferred the data of her social media accounts in the USB, when she was already in police custody. Even otherwise, transcript of the USB has been placed before us and bare perusal of the same shows that it was downloaded from the Youtube and her other purported social media accounts, which were active since the day of the occurrence, therefore, it can safely be said that the USB was planted upon the petitioner just to create evidence against her in this case. No date and time of the purported videos of the petitioner was mentioned as such it cannot be said with any degree of certainty that the same were prior or after the protest. Besides above, JIT Head, in categorical terms admitted that mobile phone of any of the co-accused was not taken into possession, so as to confirm that on account of the instigation of the petitioner at social media forum, he/they committed the said occurrence. In the above backdrop, we are of the view that on the basis of evidence created/procured against the petitioner, she cannot be connected with the alleged occurrence in any eventuality.

2. Mala fide of the Investigating Officer is also apparent from the fact that in the so-called statement of the accomplice he named a number of persons who instigated him and other party members to commit the crime but he only caused the arrest of the petitioner and one Alia Hamza and for the rest of the accused he did not give any weightage to the statement of the accomplice. In this view of the matter, we can safely say that the statement of the accomplice was procured with the sole purpose to confine the petitioner as she has been released on bail in all other cases registered against her.

3. We have noted with great concern that it is a pattern of the Executive/Police to involve the petitioner in a series of cases one after the other on the basis of same allegation. It is an admitted fact that the petitioner was resident of Lahore and whatever she had said on her social media account, was being run at Lahore. Part VI, Chapter XV of the Cr.P.C deals with the jurisdiction of the criminal Courts in inquiries and trials. Section 177 of the Cr.P.C. reads as under:

"177. 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."

Bare reading of the aforesaid section makes it abundantly clear that a trial or inquiry of an offence shall ordinarily be conducted in a Court within the local limits of whose jurisdiction such an offence was committed. In view of above any cognizable offence committed in Lahore shall be tried at Lahore and accordingly the petitioner had been involved in seven criminal cases regarding the same allegations at Lahore. When confronted with, how the petitioner could be involved in a case at Gujranwala regarding an act which was committed at Lahore, learned Law Officer while referring to Section 179 Cr.P.C. laid much emphasis that the petitioner can be involved in cases when consequence of an occurrence follow in the jurisdiction of some other police station. Before proceeding further it is appropriate to go through the referred provision which for ease of reference is reproduced as under:-

"179. Accused triable in, district where act is done or where consequence ensues. When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued."

Illustrations

"(a) A is wounded within the local limits of the jurisdiction of Court X, and dies within the local limits of the jurisdiction of Court Z. The offence o f the culpable homicide of A may be inquired into or tried by X or Z."

(b ) ----

(c ) ---

"(d) A is wounded in the State of Junagadh, and dies of his wounds in Karachi. The offence of causing A's death may be inquired into and tried in Karachi."

The word "or" used in the aforesaid section and the illustration is of much significance which means that either the accused can be tried at a place where the act was committed or the place where its consequences ensued. In nowhere it can be defined in the manner as argued by the learned Law Officer. This section would come into play where an accused committed an act in one jurisdiction and consequence of such offence ensued in another jurisdiction but on that basis due to one and the same allegation, an accused cannot be involved in multiple cases falling into different jurisdictions. In case reported as "Muhammad Sultan v. Muhammad Raza and others (2020 SCMR 1200)" the Apex Court has interpreted sections 177 and 179 of the Cr.P.C in the following manner:

"7. A legal question has been raised qua the jurisdiction of the court and venue of trial as per law. Chapter XV Part VI of the Criminal Procedure Code deals with "Jurisdiction of the Criminal Courts in Inquiry and Trials". Section 177 of the Code of Criminal Procedure relates to general principle of jurisdiction and venue of trial which is reproduced as under: -

"177. 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".

The language of the said provision is explicit in its context hardly leaving any ambiguity qua the interpretation with reference to jurisdiction and venue of the trial in ordinary circumstances however this principle has certain exceptions which are established from the bare reading of provision of sections 179 and 180, Cr.P.C. To evaluate the exceptions of the general principle qua jurisdiction and venue of trial, provision of section 179, Cr.P.C. is reproduced as under:-

"179. Accused triable in district where act is done or where consequences ensues. When a person is accused of the commission of any offence by reason of anything which had been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the limits of whose jurisdiction any such thing has been done, or any such consequence has ensued."

8. Bare perusal of the language of the aforesaid provision depicts that if there is any departure from the general principle qua jurisdiction and venue of trial, two aspects are to be evaluated for the proper determination such as:-

i. Commission of an offence.

ii. Commission of an act and other consequences ensued.

From the careful perusal of the language of the aforesaid provision, it is crystal clear that this provision has extended the limits of venue while classifying the principles to assume jurisdiction to take cognizance of an offence for the purpose of trial."

1. We are of the considered view that if the petitioner had committed any act at Lahore for which she had already been involved in a criminal case at the said place, she cannot be involved regarding the same act/offence in some other case on the basis of term "any consequence which has ensued" used in Section 179 Cr.P.C. as it would offend Article 13 of the Constitution which provides that "no person shall be prosecuted or punished for the same offence more than once." Similarly, the word 'liberty' in Article 9 is of widest amplitude covering variety of rights including personal liberty of a citizen. Likewise, Article 4 of the Constitution enshrines inalienable right of every citizen to enjoy the protection of law and be treated in accordance with law. Therefore, involving the petitioner in series of criminal cases regarding a single act amounts to usurp her fundamental rights guaranteed in the Constitution. Moreso, if this practice of involving an accused in multiple cases regarding one act is allowed then there can be no end of litigation, which is a basis of every judicial system.

2. Act of the Executive/Police to confine the petitioner in the jail for an indefinite period is a matter of record. Initially, the petitioner was detained on 10.05.2023 under subsection (1) of Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 (MPO) for a period of thirty days. When the petitioner questioned the validity of said order issued under MPO by way of filing Writ Petition No.31429/23 in this Court, she was booked in case FIR No.96/23, registered at P.S. Sarwar Road, Lahore, on 17.05.2023 on the basis of suspicion. She was granted post arrest bail in the said case by the Trial Court, Lahaore on 23.09.2023 but on 25.09.2023 she was again arrested in case FIR No.109/23 of the same police station under section 54 Cr.P.C., on the disclosure of the statement of co-accused. She was granted post arrest bail in the said case on 11.10.2023 by the Trial Court, Lahore. Keeping in view the tendency of the police for involving the petitioner one after the other in blind cases, she finally approached this Court by way of filing Writ Petition No.68444/23, inter-alia, seeking details of the cases in which she was required to the police. In the said petition, AIG Legal, on behalf of the I.G. Punjab, submitted a report that she was required only in two cases, in which she was already enlarged on bail/discharged and in the light of said report aforesaid writ petition was disposed of vide order dated 19.10.2023. However, in sheer disregard to the report submitted before this Court, after one day of the disposal of the writ petition, the petitioner was booked in case FIR No.1271/23, registered at P.S. Gulberg, Lahore on 20.10.2023 on the basis of suspicion but on the following day she was discharged by the ATC Judge. Thereafter, on the next day i.e. 21.10.2023, she was involved in case FIR No.366/23, registered at P.S. Model Town, Lahore on the basis of supplementary statement. She was granted post arrest bail in the said case on 07.11.2023 by the Trial Court and astonishingly on the following day i.e. 08.11.2023 she was booked in case FIR No.410/23, P.S. Race Course, Lahore on the basis of supplementary statement. She was enlarged on bail in the said case on 02.12.2023 by the Trial Court but the Deputy Commissioner, Lahore, issued her detention order under the MPO for a period of thirty days vide order dated 02.12.2023. Petitioner challenged the MPO order by way of filing Writ Petition No.81620/23, upon which MPO order was withdrawn vide order dated 29.12.2023 but she could not bear the fruits of said withdrawal order, as she was booked in FIR No.367/23, P.S. Model Town, Lahore, on 30.12.2023 on the basis of supplementary statement. She secured post arrest bail in the said case from the Trial Court vide order dated 29.01.2024 and on the same day, she was booked in case FIR No.768/23, P.S. Shadman, on the confessional statement of the co-accused. She was enlarged on bail in the said case on 27.03.2024 by the Trial Court. Till that time she had been involved in all cases relating to the incidents of 9th May, 2023 registered at Lahore. Thereafter, a very strange strategy was adopted by the Executive in order to frustrate the judicial orders and she was booked in case FIR No.179/23, registered at P.S. Kamar Mashani, District Mianwali on 01.04.2024 on the basis of supplementary statement. She was finally discharged in the said case on 17.04.2024 by the ATC Judge, Sargodha and on the same day, she was booked in case FIR No.180/23, registered at the same police station, wherein, she was granted post arrest bail on 29.05.2024 by the Trial Court. She was then booked in case FIR No.72/23, P.S. Musa Khel, Mianwali but the learned Judge, ATC, Sargodha granted her pre-arrest bail in the said case vide order dated 05.06.2024. It is noteworthy that when the learned Judge, ATC, Sargodha, foiled the efforts of the police to further detain the petitioner in cases registered at Mianwali by granting her pre-arrest bail, on the same day, she was booked in case FIR No.823/23 registered at P.S Cantt. Gujranwala on the basis of confessional statement of co-accused (subject matter of this petition). Eager of the Executive to detain her in custody indefinitely is evident from the fact that besides involving her in the said case, as a precaution, Deputy Commissioner, Gujranwala issued her detention order under the MPO, vide order dated 06.06.2024. Apparently, this had been done that in case the learned Judge, ATC at Gujranwala discharges the petitioner as had been done by the Judge, ATC, Sargodha, then there remained a justification to retain her in jail. But thanks to the learned Judge, ATC Gujranwala that he neither perused the material connecting the petitioner in the said case nor took into the consideration the tendency of the prosecution to involve the petitioner one after the other case seriously and granted her physical remand blindly. Apparently, on achieving the desired result, subsequently the Deputy Commissioner, Gujranwala withdrew his detention order.

3. The purpose of giving the detail of the treatment meted out by the petitioner for the last one year is to show highhandedness and disregard to the judicial orders by the Executive Authorities just to curtail her liberty. It is a matter of great concern that on behalf of Inspector General of Police, Punjab a report was submitted before this Court in W.P.No.68444/23 that the petitioner was required only in two cases, but after submission of said report, she was booked in nine other cases on the same charge/allegation. Neither the police authorities enjoy unfettered powers to curtail the liberty of a person for an indefinite period nor their actions are immune to judicial scrutiny. In case reported as "Muhammad Bashir v. SHO, Okara Cantt. and others (PLD 2007 SC 539)", the Apex Court has observed as under:-

"It may be added that the Police force was not a creation of the Code of Criminal Procedure but was a force initially established by the Police Act of 1861. The Code of Criminal Procedure only borrowed some, from amongst this force, and asked them to perform some of its functions. They had, therefore, no powers to go around doing things according to their whims and desires in the matter of administration of justice in the field of crimes. The powers enjoyed by the members of the police force were limited to the authority conferred on them by law. And it may be added that every step which the Cr.P.C. permitted a police officer to take, was subject to scrutiny and control of some court or Magistrate."

1. One may disagree with the political views of the petitioner and if she committed any crime she has to face the music but the way and manner she is being involved in criminal cases one after the other, in least words can be said a malicious persecution and this Court being jealous guardian of the fundamental rights of the citizens cannot tolerate the same. In "Ammad Yousaf v. The State and another (PLD 2024 SC 273)", the Apex Court observed as under:-

"The exercise of inherent powers assigned to the Courts to preserve and protect the rights of the citizens is a mandate of the Constitutions, whereas, non-exercise of such powers is a violation of the Constitution and law, hence is an illegality. The Courts instead of becoming an apparatus for malicious and purposeless judicial prosecution by entertaining baseless and frivolous complaints must exercise their powers in accordance with law, without fear and favour. If the Courts overlook such constitutional mandate and fail to exercise their inherent powers, it will harm the integrity, impartiality and independence of our criminal justice system. It will undermine and erode the public trust and confidence in our Courts."

1. The principle of trichotomy of power is widely recognized in our Constitution. It means the Legislature, the Judiciary and the Executive form the fundamental pillars of the State and that each of these are responsible for exercising legitimate authority in their respective sphere. Legislature is tasked with making new laws and amending existing one to meet the needs of the people. The Judiciary is, inter-alia, responsible for interpreting the law and to protect fundamental rights which include the life and liberty, whereas, Executive is responsible for enforcing laws and court orders to establish the writ of the State and uphold rule of law. It is the duty of the Executive to implement/ comply with the orders whether it likes it or not. Neither any country can flourish without giving due regard to the orders of the Courts nor the writ of the State can be established. If the orders of the Courts are flouted in the way and manner as has been done in the instant case then anarchy would prevail. Executive is reminded the well-entrenched principle of law that their actions are not immune from the judicial scrutiny, therefore, while exercising such authority, they should not intrude into the constitutionally guaranteed fundamental rights of the citizens. Similarly, the Judicial Officers are expected to perform their duty with dignity, pride, dedication and by keeping in mind the fact that a sacred obligation to deliver justice has been bestowed upon them beyond any temptation, fear or favour. They must perform their functions with their eyes and ears open as required under the law and their action should not caste even a bleak doubt in the minds of the litigants, who are the ultimate stakeholders, that the same was result of any enticement or panic.

2025 P Cr. L J 201

[Lahore]

Before Aalia Neelum, J

Ali Zain---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 23371 of 2024, decided on 16th April, 2024.

Criminal Procedure Code (V of 1898 ) ---

----Ss. 439 & 435 --- Qanun-e-Shahadat ( 10 of 1984 ), Chap. III --- Relevancy of facts --- Draftsman-Relevancy of site plan---Putting questions to the draftsman---Denial of--- Petitioner prayed for setting aside the order passed by the learned Additional Sessions Judge, Lahore, whereby he (petitioner) was not allowed to put question to prosecution witness/ draftsman regarding the relevancy of site plan of place of recovery of weapon of offence--- Contention of the petitioner was that the draftsman as Prosecution Witness (PW) was questioned about the site plan prepared by him, and the Trial court had not allowed putting the question to the said witness as a non relevant question--- Validity ---Examination-in-chief as well as cross- examination conducted by the defence on draftsman (PW) revealed that during cross- examination, the defence put the question about the site plan of the place of recovery of the weapon of offence prepared by the investigating officer to the said witness---Admittedly, draftsman (PW) was not the author of the site plan nor the witness on whosepointing site plan was prepared, and that the petitioner/defence just wanted to verify the place of occurrence from the prosecution witness--- For said reason, the petitioner referred to the site plan of the place of recovery of the weapon of offence---Petitioner admitted that the draftsman (PW) had not prepared the site plan of the place of recovery of the weapon of the offence, nor did he remain a witness, nor under his instructions, had the site plan been prepared---Said witness (draftsman/ PW) was not a scriber of the site plan nor could be considered an attesting witness---Thus, ground(s) mentioned in the impugned order were sound and reasonable ---Petitioner had failed to point out any illegality or legal infirmity in the impugned order passed by the Trial Court (Additional Sessions Judge), warranting interference by the High Court---Criminal revision petition, being without any substance, was dismissed.

Kashif Arshad Malik for the Petitioner.

Order

Aalia Neelum, J.---Through instant criminal revision under section 439 of Cr.P.C. read with section 435 Cr.P.C., Ali Zain, the petitioner, has prayed for setting aside the order dated 11.03.2024 (wrongly mentioned as 06.03.2024 in prayer) passed by the learned Additional Sessions Judge, Lahore, whereby the petitioner was not allowed to put question to Syed Muhammad Younus Bukhari draftsman (PW-1) regarding the relevancy of site plan of place of recovery of weapon of offence.

2025 P Cr. L J 211

[Lahore]

Before Ali Baqar Najafi and Sultan Tanvir Ahmad, JJ

Muhammad Ilyas---Petitioner

Versus

The Chairman, National Accountability Bureau and 3 others---Respondents

Writ Petition No. 5915 of 2020, decided on 2nd May, 2024.

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

----S.5 (da)---Benamidar---Connotation---One can be said to be Benamidar only when he ostensibly holds or is in possession or has custody of some property which actually belongs to accused of an offence punishable under National Accountability Ordinance, 1999 or if it is meant for the benefit and enjoyment of accused.

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

----S.12 (a)---Freezing of property---Words "reasonable grounds"---Scope---NAB authorities or Accountability Court are permitted under S.12 (a) of National Accountability Ordinance, 1999, to pass order of freezing of any property or part thereof in possession of accused or in possession of any relative or associated person---This is itself dependent upon availability of reasonable grounds.

Shah Rukh Jamal v. National Accountability Bureau, Islamabad and others PLD 2022 Islamabad rel.

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

----Ss. 5 (da), 9 (a), 12 & 33-E---Constitution of Pakistan, Art. 199---Constitutional petition---Recovery of fine---Benami property---Proof---Petitioner was aggrieved of including his property in the list of confiscated assets of convicted accused for recovery of fine in terms of S.33-E of National Accountability Ordinance, 1999 as arrears of land revenue---Validity---Starting from the year 2007, NAB authorities did not bring case of petitioner before Accountability Court for judicial scrutiny---Petitioner was not even summoned as witness in any of the references filed in the scam---No effort was made to examine if amount of earnest money paid by brother of convict accused was actually proceeds of the crime---Brother of convict/accused was not even tried for being Benamidar or for using or having possession of crime proceeds, despite the fact that more than one decade had passed---Property could not be sold under S.33-E of National Accountability Ordinance, 1999, for recovery of fine imposed against convict accused---Prosecution could not do it without first establishing that property was held as Benami for any convict---High Court set aside orders passed by authorities---Constitutional petition was allowed accordingly.

Eden Developers Ltd. v. NAB and others PLD 2011 Lahore 48; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Ghulam Basit v. The State and another 2013 PCr.LJ 1797; Saad Sumair v. National Accountability Bureau (NAB) through Chairman and 2 others PLD 2022 Isl. 371; Mst. Bilqis Bano and another v. Pakistan Defence Officers Housing Authority through Administrator and 4 others; 2019 PCr.LJ 962; Syed Azmat Hussain v. Chairman, NAB and others 2011 PCr.LJ 104; Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 and Iqbal Ahmed Turabi and others v. The State PLD 2004 SC 830 ref.

Khurshid Anwar Bhindar for Petitioner.

Ch. Farid-ul-Hassan, Special Prosecutor NAB for Respondents.

Date of the hearing: 5th December, 2023.

Judgment

Sultan Tanvir Ahmad, J.---Through this petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged order of restriction bearing No. 1(9)/HQ/535/NAB-P(IW-ii) dated 08.10.2007 passed UNDER National Accountability Ordinance, 1999 (the 'Ordinance'), with respect to property measuring 41-kanals 05-marlas situated in Mouza Suhadara, Tehsil Wazirabad, (Gujranwala) commonly known as Ayesha Rice Mills (the 'Property') as well as the act of placing the property under caution and order dated 23.12.2019 to include the property in the list of confiscated assets for the recovery of fine of Rs. 1286 Million, in terms of section 33-E of the Ordinance, as arrears of land revenue in connection with case No. 20/2006 titled State v. Zaheer Abbas Ghumman and others.

1. Brief facts, required for reaching to decision of the case, are that Syed Sibt-ul-Hassan Gillani alias Double Shah was found to be involved in receiving investment from people of the area with promise to double the investments in short span of time. Reference was filed against Double Shah before the learned National Accountability Court, Lahore (the 'Accountability Court'). During the course of inquiry against Double Shah, Zaheer Abbas Ghumman and others were investigated and after due probe a Reference No. 17/2009 was also instituted against them. Zaheer Abbas Ghumman, Javed Iqbal and Syed Moazzam Hussain Gillani requested for their plea bargain for an amount of Rs. 1286 Million, which was accepted by the National Accountability Bureau (NAB). Zaheer Abbas Ghumman and others made confession before the learned Accountability Court on 13.04.2012. Consequently, the learned Accountability Court convicted Zaheer Abbas Ghumman and others and proceeded to pass the sentence in the following manners:-

"They committed offence of corruption and corrupt practices as defined in section 9 (a)(iii)(iv) (ix) and (xii) and punishable under section 10 (a) of NAO 1999. All the accused are first offenders. They involved themselves to work as agent of Double Shah due to greediness. They are sole bread earners of their families. They voluntarily confessed their guilt and put themselves on mercy of the court. They are behind the bar since 26-05-2009. These are mitigating circumstances, to deal the accused with leniency. They are convicted under section 10 (a) of NAO 1999 and sentenced to six (6) years rigorous Imprisonment each which is sufficient to meet the ends of justice. They shall also be pay to the tune of Rs.1286 million subject to adjustment of amounts paid to, collected or recovered by NAB in the terms of cash bank accounts moveable and immoveable assets mentioned at pages 9, 10, 11, 13, 14 and 15 of the investigation report. In case of failure in payments of fine, they shall have to undergo six (06) months simple imprisonment. The amount of fine shall be recoverable as arrears of land revenue as envisaged under section 33-E of NAO 1999. All the assets, amount and bank accounts in the names of the accused and obtained by the accused in the name of their benamidars/beneficiaries shall be confiscated in favour of the state."

1. As per the allegations of the prosecution against the petitioner as well as orders assailed, one Haq Nawaz who is brother of Zaheer Abbas Ghumman-convict paid Rs. 17.5 Million (rupees seventeen million five hundred thousand only) to the petitioner on 13.03.2007 as token money for the purchase of the property and the petitioner is holding the property as benamidar of Haq Nawaz. Aggrieved from the said allegations and above mentioned orders the present petition has been instituted.

2. Mr. Khurshid Anwar Bhindar, learned counsel for the petitioner, has submitted that the allegations against the petitioner are uncertain and formless; that the petitioner is real owner in possession of the property who purchased the same in the year 1995; that the petitioner is also holding title documents of the property in the shape of sale deed registered in his favour on 14.09.1999 with Sub-Registrar of Wazirabad (the 'sale deed'); that the petitioner, having no idea as to any case against Zaheer Abbas Ghumman-convict and in good faith, entered into an agreement to sell the property dated 13.03.2007 (the 'agreement') with Haq Nawaz. It is further submitted that Haq Nawaz merely paid earnest money and then breached the agreement; consequently, the petitioner approached the learned Civil Court concerned and obtained decree dated 25.03.2010 to the effect of forfeiture of earnest money on account of default by Haq Nawaz. Learned counsel for the petitioner has relied upon cases titled "Eden Developers Ltd. v. NAB and others" (PLD 2011 Lahore 48), "Ghani-ur-Rehman v. National Accountability Bureau and others" (PLD 2011 SC 1144), "Ghulam Basit v. The State and another" (2013 PCr.LJ 1797), "Saad Sumair v. National Accountability Bureau (NAB) through Chairman and 2 others" (PLD 2022 Islamabad 371), "Mst. Bilqis Bano and another v. Pakistan Defence Officers Housing Authority through Administrator and 4 others" (2019 PCr.LJ 962) and "Syed Azmat Hussain v. Chairman, NAB and others" (2011 PCr.LJ 104) and he has contended that the petitioner is neither an accused in any of the reference emanating out of the Double Shah scam nor he is ever called as witness, thus, confiscating the property is in utter violation of the principles settled in the said cases; that the petitioner or the property has no nexus with the alleged crime or the proceeds of the crime. The learned counsel, without prejudice to the above, has stated that even if Haq Nawaz is found to have been dealing with the proceeds of the crime, the petitioner is lawful owner in the possession of the property from 1995 and the agreement in favour of Haq Nawaz since has been cancelled on account of his failure to pay consideration and he never acquired any ownership right or interest in the property, thus, the same cannot be sold to satisfy any claim or payment of fine.

3. Conversely, learned Special Prosecutor of NAB has argued that huge amount is involved in the case and Rs. 682 Million has already been recovered from different benamidars. The remaining amount is yet to be recovered by the sale of confiscated assets including the property; that as a matter of fact it was Zaheer Abbas Ghumman-convict, who paid Rs. 17.5 Million as token to the petitioner through Haq Nawaz, his brother, as a benamidar. He has further submitted that the orders and the actions impugned, in this petition, are in accordance with law.

4. We have heard the arguments and perused the documents with the able assistance of the learned counsel for the parties.

5. The prosecution has not denied before us that the petitioner is not an accused in any of references filed by NAB in the matters arising out of Double Shah scam. It is further confirmed that the petitioner was never produced or summoned by the learned Accountability Court as a witness. Admittedly, the petitioner is never examined by any forum, judicial or even investigation agency, in connection with the property or receiving proceeds of crime. The definition of benamidar given in the Ordinance, as applicable at the material time, is as follows:-

Section 5(da).

"benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused.

(Underlining is added)

A bare perusal of the definition of word benamidar given in the reproduced provision of the Ordinance, reflects that one can be said to be a benamidar only when he ostensibly holds or is in possession or has custody of some property which actually belongs to the accused of an offence punishable under the Ordinance or if it is meant for the benefit and enjoyment of the accused.

Benami transaction or benamidar is also mentioned in section 9(v) of the Ordinance which, at the relevant time, was as under:-

Section 9(v)

"If he or any of his dependents or benamidar owns, possesses, or has [acquired] right or title in any assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income; or …

(Underlining is added)

1. Reading of section 9(v) of the Ordinance further confirms that before holding someone as benamidar of illegal asset it is necessary that the person is given a chance to reasonably account for the asset in question or if he maintains standard of living beyond his means or if the asset does not commensurate with his sources. It is not argued by the representatives of NAB before us that the petitioner was ever asked to account for the property or the petitioner is holding the property beyond his means. The Honourable Supreme Court of Pakistan in case titled "Mst. Zahida Sattar and others v. Federation of Pakistan and others" (PLD 2002 SC 408) observed that in the cases under progress for accumulation of wealth by illegal or corrupt practices, if dispute arises between the one claiming to be the real owner (not being accused himself) and on the other hand the alleged ostensible owner i.e. benamidar then such dispute being civil in nature can be resolved by the learned Civil Court under Section 9 of the Code of Civil Procedure, 1908. It will be beneficial to reproduce the following extract from said judgment:-

"12. The question arises whether a Civil Court is vested with the jurisdiction to entertain a suit to try an issue which is subject-matter of a criminal charge for which an accused is being tried in a Criminal Court under special law i.e. NAB Ordinance. The answer to this question revolves around the decision on the question whether the Civil Court can try a criminal charge which is exclusively triable by a criminal Court under the special law. The answer cannot be but in the negative. If it had been a dispute between the real owner and the ostensible owners who were alleged to be the benamidars arising from denial of latter's right for former, certainly it would have been a dispute of civil nature and only the Civil Court could take cognizance of the same under section 9, C.P.C. which provides that a Civil Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature except the suits of which their cognizance is either expressly or impliedly barred."

(Emphases supplied)

1. In the aforesaid case the Supreme Court of Pakistan also recommended the Federal Government to consider making suitable amendments in the Ordinance, ensuring that the alleged ostensible owners are summoned by the learned Accountability Courts to provide them opportunity, during the trial, to prove that the assets in question were acquired by them through their own resources and if it is decided that the allegations are correct, they should be provided with remedy of appeal to advance the needs of justice.

2. The Supreme Court of Pakistan in case titled "Iqbal Ahmed Turabi and others v. The State" (PLD 2004 SC 830) examined the question involving benami transaction in a NAB matter and observed that in the situation when the dispute arises between third party on the one side and the real owner and the benamidar on the other, conduct of the parties and surrounding circumstances are to be taken into consideration to determine as to whether the questioned transaction was a benami or not. The relevant part of the judgment reads as follows:-

"The premises was taken from petitioner Iqbal Ahmad Turabi but the tenancy agreement was executed in which petitioner Hassan Raza was shown as landlord. In the beginning the rent was being collected by petitioner Iqbal Ahmad Turbai but after few months petitioner Hassan Raza started collecting the rent. From the above evidence, it is clear that the letting out of the premises to Khalid Hussain has not been denied by any of the petitioners. It is pertinent to point out that in benami transaction, from whom the consideration money came and from whom the document of sale are produced in Court plays a dominant roll when the dispute is between the real owner and the benamidar. If the dispute is between the third party on the one hand and the real owner and the benamidar on the other hand then the above-mentioned consideration looses its importance. In such situation the conduct of the parties and the surrounding circumstances are to be taken into consideration to determine, whether the transaction was a benami transaction or not. It is no doubt true that the source of consideration money and the possession of the titled documents are essential elements to determine the nature of the transaction where the dispute arises in between benami and the real owner."

(Underlining is added)

1. Section 12(a) of the Ordinance, which permits NAB authorities or the learned National Accountability Court to pass an order of freezing of any property or part thereof in possession of the accused or in possession of any relative or associated person, itself is dependent upon availability of reasonable grounds. A learned Division Bench of Islamabad High Court in case titled "Shah Rukh Jamal v. National Accountability Bureau, Islamabad and others" (PLD 2022 Islamabad 1), while examining sections 12, 13 and 23 of the Ordinance, reached to the conclusion that reasonable grounds as contemplated in the section 12 of the Ordinance, requires existence of certain essential facts. The test settled is that the facts and circumstances should be so that it lead a reasonable prudent person to form belief that a property, directly or indirectly, is owned and controlled by an accused under the Ordinance. The requisite standard, to pass an order under section 12 of the Ordinance, is fixed as more than mere suspicion but less than on the balance of probabilities. It has also been concluded that the power to freeze one's property is subject to judicial scrutiny. It will be well advantageous to reproduce paragraphs No. 13 to 15 of the said judgment:-

"13. The august Supreme Court in the case titled "Chaudhry Shujat Husain v. The State" [1995 SCMR 1249] has observed and held as follows:-

"The term "reason to believe" can be classified at a higher padestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reason to believe." In Nisar Ahmad's case the criteria laid down seems to be that where some tangible evidence is available against the accused which, if left unrebutted, may lead to the inference of guilt."

14. It is obvious from the above discussed precedent law that having 'reasonable grounds to believe' has reference to the required evidentiary threshold. It is a legal standard and it has to be met as a precondition before exercising the intrusive power under section 12 of the Ordinance of 1999. There must be 'reasonable grounds' which manifests existence of certain essential facts. It essentially refers to the existence of such facts and circumstances which would lead a reasonable prudent person to form a belief. In the context of section 12 such belief would be relatable to the property being, directly or indirectly, owned and controlled by an accused and the latter having committed one of the offences described under section 9 of the Ordinance of 1999. The requisite standard is higher than a reasonable suspicion but less than 'on balance of probabilities'. It is distinct from conjecture, speculation or suspicion. The required standard is far less than proving something beyond a reasonable doubt. It is a threshold required for a reasonable person to conclude and be satisfied on the basis of sufficient material to conclude deprivation of or interference with the right to own, hold or control a property. The conclusion may be subjective but it must be based on some reliable material or evidence. The formation cannot be based on mere suspicion even if it may be reasonable. In a nutshell, forming an opinion On the basis of reasonable grounds to believe is distinct and a higher legal standard than 'reasonable suspicion'.

15. There is another distinctive factor of the scheme regarding the intrusive power provided under section 12. The power is subject to judicial scrutiny explicitly described under section 13. While the claim or objection is exclusively justifiable by the Accountability Court, a statutory right of appeal lies to a High Court. Moreover, even if no order has been passed under section 12, there is a statutory prohibition under section 23 to deal with a property connected with one of the offences described under section 9 of the Ordinance of 1999. The special scheme provided under sections 12, 13 and 23 of the Ordinance of 1999 to deal with a property owned or controlled by an accused and connected with the offence allegedly committed by the latter is distinct from the powers under Cr.P.C."

2025 P Cr. L J 233

[Lahore]

Before Tariq Saleem Sheikh, J

Nasira Ashfaq---Petitioner

Versus

Director General Safe Cities Authority, Punjab and 6 others---Respondents

Writ Petition No. 78006 of 2023, decided on 30th April, 2024.

(a) Constitution of Pakistan---

----Arts. 19 & 19-A---Universal Declaration of Human Rights (UDHR), 1948, Art. 19---International Covenant on Civil and Political Rights (ICCPR)---European Convention on Human Rights (ECHR)---American Convention on Human Rights---Right to information---Object, purpose and scope---Right to information is a fundamental human right recognized and protected by international human rights jurisprudence---Such right is often considered essential for functioning of democratic societies and is closely linked to the principles of transparency, accountability and right to freedom of expression---Right to information empowers individuals to assess information held by public authorities fostering informed decision-making and civic engagements and preventing corruption---Article 19 of Universal Declaration of Human Rights (UDHR) adopted in 1948 enshrines right to information, which states: "Everyone has the right to freedom of opinion and expression, this right includes freedom to seek, receive and impart information and ideas through any media and regardless of frontiers"---Such provision lays foundation for right to information as an integral component of freedom of expression---International Covenant on Civil and Political Rights (ICCPR), another cornerstone of international human right law, reinforces the right to information in Art. 19, which echoes sentiments expressed in UDHR emphasizing significance of freedom of expression and recognizing pivotal role of access to information---Regional human rights instruments such as European Convention on Human Rights, (ECHR) and American Convention on Human Rights incorporate provisions related to right to information---Provision of Article 10.1 of ECHR states:"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers"---On a global scale, United Nations (UN) has been actively promoting right to information---U.N. General Assembly in its resolution 59/1 recognized "freedom of information as a fundamental human right and…. the touchstone of all the freedoms to which United Nations is consecrated."---U.N. also designated September 28 as International Day for Universal Access to Information to emphasize importance of such right---Right to information is not absolute---Legal provisions often allow for restrictions, particularly in national security, public order and safety, personal privacy, commercial interests, law enforcement, state secrets, intellectual property rights and prevention of hate speech and defamation---Challenge lies in balancing right to access information and other societal interests---International human rights instruments stress that any restriction should be prescribed by law, and should be necessary, proportionate and serve legitimate objectives.

Mian Muhamamd Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2023 SC 661; Province of Punjab v. Qaisar Iqbal and others PLD 2018 Lahore 198; Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692; Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961 and SC State of Jammu and Kashmir v. Bakhshi Ghulam Mohammad AIR 1967 SC 122 rel.

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

----S. 9 (c)---Punjab Safe Cities Authority Act (I of 2016), S. 19---Punjab Safe Cities Authority Electronic Data Regulations, 2016, Reglns. 3 (2) & 9 (1)---Criminal Procedure Code (V of 1898), S. 22-A---Constitution of Pakistan, Art. 19-A---Constitutional petition---Right to information---Data of Safe Cities Authority---Petitioner was aggrieved of not providing of data to her which was essential to prove innocence of her husband---Ex-officio Justice of Peace declined to issue any direction and Safe Cities Authority ("the Authority") also did not provide such data---Validity---Application of petitioner to the Authority was not maintainable as it was on plain paper and not in the prescribed form (EDR Form)---Punjab Safe Cities Authority, under Regln. 9 (1) of Punjab Safe Cities Authority Electronic Data Regulations, 2016,was not authorized to entertain requests for private persons for the provision of any data---Only investigating officers, Law Enforcement Agencies, Courts, Tribunals or other authorized persons could collect specific data for a particular purpose in manners, and in matters under inquiry or investigation, or cases pending adjudication---Punjab Safe Cities Authority ('PSCA') rightly declined request of petitioner---Petitioners application before PSCA was not maintainable---Petitioner had remedies available under Police Orders, 2002 and Ss.551 & 156(3), Cr.P.C. but she did not pursue them---Petitioner filed application under S.22-A, Cr.P.C. before Ex-officio Justice of Peace, who dismissed the same on the premise that it would constitute interference in the investigation, which was prohibited under the law---Ex-officio Justice of Peace erred in such determination as per Khizar Hayat's case, reported as PLD 2005 Lahore 470, he could issue directives to senior police officers to redress petitioner's grievance---Petitioner filed Constitutional petition 2 months and 12 days after the incident regarding which she had a cross version---By that time the video recordings had already been disposed of by Punjab Safe Cities Authorities---Call Data Records (CDRs) mentioned by petitioner had already been obtained by investigating officer during the pendency of petition before High Court and were placed on file---High Court declined to interfere in the matter---Constitutional petition was disposed of accordingly.

Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109; Mst. Saima Noreen v. State and another PLD 2024 Lah. 522; Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675; Azeem Khan v. Mujahid Khan 2016 SCMR 274; Mian Khalid Perviz v. The State and another 2021 SCMR 522; Shameem Bibi v. The State and others 2022 SCMR 2077; Rashed alias Chand and others v. The State 2022 PCr.LJ 664; and Noor Ahmed alias Ahmed Agha v. The State 2022 PCr.LJ 1126; Allahabad Bank v. Canara Bank and another 2000) 4 SCC 406; Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and others (2001) 3 SCC 71; Paul B. Weston et al (Criminal Investigation: Basic Perspective); Afzal Ahmad v. City Police Officer, Faisalabad and others PLD 2022 Lahore 721; Altaf Ahmad Makhdoom v. Inspector General of Police, Punjab and others 2023 PCr.LJ 1; Babubhai v. State of Gujjrat and others (2010) 12 SCC 254; Vinay Tyagi v. Irshad Ali alias Deepak and others (2013) 5 SCC 762; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lahore 470; Zahira Habibullah Sheikh and another v. State of Gujarat and others AIR 2004 SC 3114; Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Baluchsitan and another PLD 1971 SC 677; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 and Hamza Imdad v. The State and others, Criminal Miscellaneous No. 62979-B of 2023 rel.

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

----S. 155(2)---Investigation of offence---Powers---When a power is given to an authority to do something, it includes such incidental or implied powers that would ensure proper doing of that thing---When statute expressly grants any power, there is impliedly included in the grant, even without special mention, every power and every control, the denial of which would render the grant itself ineffective---Power to order police to investigate cases involving non-cognizable offences under S.155(2), Cr.P.C. includes all such incidental powers essential to ensure a proper investigation.

Sakiri Vasu v. State of U.P. and others AIR 2008 SC 907; Mohd. Yousuf v. Smt. Afaq Jahan and another AIR 2006 SC 705; M. Subramanian v. Janki AIR Online 2020 SC 387 and State of Bihar and another v. J.A.C Saldanha and others AIR 1980 SC 326 rel.

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

----S. 94---Word "whenever"---Scope---Word "whenever" indicates that a Court can exercise power to require production of any document or other thing at any stage during any inquiry or trial---Only condition is that it must be necessary or desirable for the proceedings.

The State v. Chaudhry Muhammad Usman 2023 SCMR 1676; Shakeel Akhtar v. The State and others 2023 LHC 7704; Zaheer Ahmed v. Judge, Special Court and others PLD 2023 Lahore 528 and Muhammad Asif Ali Usama v. The State and others 2022 PCr.LJ 59 rel.

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

----Ss. 94, 22-A, 155(2), 156(3), 551 & 561---Police Order (22 of 2002) Arts. 100 & 106---Constitution of Pakistan, Art. 199---Unsatisfactory police investigation---Complaints, addressing of---Provision of Police Order, 2002, Ss.22-A (6), 551, 155(2), 156(3) & 94, Cr.P.C. effectively address complaints regarding an unsatisfactory police investigation---Such remedies are not mutually exclusive and an individual must be vigilant and resort to the most effective one in a given situation---High Court retains the authority to intervene if investigation appears to be conducted in bad faith or without jurisdiction---In specific situation, where it is evident that an investigating officer is deliberately neglecting to secure crucial evidence, potentially motivated by ulterior motives and the affected individual can demonstrate that he has no alternate adequate and efficacious remedy, which is prerequisite for invoking jurisdiction under Art. 199 of the Constitution, High Court may issue a writ of mandamus.

Mian Faiz Ali, assisted by Muhammad Faheem Ahmad and Mian Husnain Raza for Petitioner.

Malik Shahzeb Nawaz Khokhar and Muhammad Taqi, Law Officers, with Rana Shoaib, SSP/Chief Administration Officer and Waqas Ahmed, Chief Maintenance Officer, PSCA for Respondents Nos. 1 and 2.

Ms. Khalida Parveen, Additional Advocate General, with Jawad/SI and Azam/SI for Respondents Nos. 3 to 7.

Date of hearing: 21st December, 2023.

Judgment

Tariq Saleem Sheikh, J.---On 14.09.2023 at 03:05 a.m., Sub-Inspector Muhammad Nawaz Kahloon (Respondent No.6) lodged FIR No.1701/2023 at Police Station Wahdat Colony, Lahore, under section 9-(1)3c of the Control of Narcotic Substances Act, 1997 (CNSA). He reported that earlier the same night, around 02:45 a.m., he had arrested Muhammad Ashfaq, son of Hafeez Ullah, on source information and seized 1460 grams of charas from his possession. The investigation of this case was assigned to Respondent No.7. He produced Ashfaq before the Area Magistrate the following afternoon, who remanded him to judicial custody.

1. The Petitioner, who is Ashfaq's wife, has a cross-version. According to her, on 13.09.2023, she went to her parents' house at Faizpur Attari, District Sheikhupura, along with Ashfaq and their children. The same evening, around 06:30 p.m., 6/7 unknown persons dressed in plain clothes barged into the house, mercilessly beat Ashfaq and then dragged him out. A black Toyota Corolla Car No.TEU-552, three motorcycles and three unknown persons, out of whom two were wearing police uniforms, were waiting for them. They forced Ashfaq into the car and sped away. At about 07:15 p.m., the Petitioner called the police emergency helpline '15' from her cellphone (No. 0320-8425380) and reported the incident, but no assistance arrived. Approximately 30 minutes later, she received a call from Ashfaq's cellphone (No. 0308-1120813), and an unidentified person spoke to her. He warned her against pursuing legal action and threatened that she would put Ashfaq's life and liberty in danger if she proceeded. The said person then handed over the phone to Ashfaq who told her that Respondent No.6 was taking him to Police Station Wahdat Colony, Lahore. The Petitioner alleges that half an hour later, she received another call from her husband's phone. Ashfaq conveyed that Respondent No.6 was demanding a ransom of Rs.500,000/- for his release. She lacked the means to meet such a demand. Upon seeing her helplessness, the amount was lowered to Rs.200,000/-. Despite her earnest efforts, the Petitioner could not raise even the reduced sum. Consequently, Respondent No.6 framed Ashfaq in a narcotics case through FIR No.1701/2023. The Petitioner asserts that between the initial call and the registration of the FIR at 03:05 a.m. on 14.09.2023, Ashfaq contacted her multiple times at the behest of Respondent No.6. She possesses recordings of all those calls, which she could present as evidence when required.

2. The Petitioner filed applications with senior police officers requesting them to obtain CCTV footage from the Punjab Safe Cities Authority (PSCA) and call data records (CDRs) of Cellphone Nos. 0320-8425380 and 0308-1120813 from the cellular companies concerned for the relevant period but they did not take any action. On 02.10.2023, the Petitioner submitted two applications addressed to the Director General and the Chief Operating Officer of the PSCA (Respondents Nos.1 and 2, respectively) for providing camera footage regarding the incident of September 13th and the record of her call to the police helpline '15' that day. However, her request was declined through a letter dated 19.10.2023. Meanwhile, on 18.10.2023, she filed an application under sections 22-A and 22-B of the Code of Criminal Procedure 1898 (hereinafter referred to as the "Code" or "Cr.P.C.") before the Ex-officio Justice of Peace, Lahore, praying that Respondents Nos.1 and 2 be directed to provide the requisite CCTV footage and call data to Respondent No.7, who was investigating case FIR No. 1701/2023. She further requested that Respondent No.7 be directed to receive and incorporate this evidence into the police file and conclude the investigation in accordance with the law. The Ex-officio Justice of Peace dismissed the said application by order dated 07.11.2023 on the ground that it would amount to interference in the investigation of FIR No.1701/2023, which is prohibited under the law.

3. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner prays for the same relief she sought in her application under sections 22-A and 22-B Cr.P.C.

4. This Court issued notices to the Respondents and also sought a report and para-wise comments from the PSCA which it submitted.

5. Arguments heard. Record perused.

6. The "right to information" is a fundamental human right recognized and protected by international human rights jurisprudence. This right is often considered essential for the functioning of democratic societies and is closely linked to the principles of transparency, accountability, and the right to freedom of expression. The right to information empowers individuals to access information held by public authorities, fostering informed decision-making and civic engagement and preventing corruption.

7. The Universal Declaration of Human Rights (UDHR), adopted in 1948, enshrines the right to information in Article 19, which states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to seek, receive and impart information and ideas through any media and regardless of frontiers." This provision lays the foundation for the right to information as an integral component of freedom of expression.

8. The International Covenant on Civil and Political Rights (ICCPR), another cornerstone of international human rights law, reinforces the right to information in Article 19. It echoes the sentiments expressed in the UDHR, emphasizing the significance of freedom of expression and recognizing the pivotal role of access to information.

9. Additionally, regional human rights instruments, such as the European Convention on Human Rights (ECHR) and the American Convention on Human Rights, incorporate provisions related to the right to information. For example, Article 10.1 of the ECHR states: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

10. On a global scale, the United Nations (U.N.) has been actively promoting the right to information. The U.N. General Assembly, in its Resolution 59/1, recognized that "freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." The U.N. also designated September 28 as the International Day for Universal Access to Information to emphasize the importance of this right.

11. The right to information is, however, not absolute. Legal provisions often allow for restrictions, particularly in national security, public order and safety, personal privacy, commercial interests, law enforcement, State secrets, intellectual property rights, and the prevention of hate speech and defamation. The challenge lies in balancing the right to access information and other societal interests. International human rights instruments stress that any restrictions should be prescribed by law, necessary, proportionate, and serve legitimate objectives.

12. Numerous countries have adopted specific legislation to give effect to the right to information. In Pakistan, Article 19 of the Constitution of 1973 guarantees every citizen the "freedom of speech and expression". In a landmark ruling in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), the Supreme Court of Pakistan affirmed that this freedom encompasses the right to receive information. Subsequently, in 2010, Article 19A was introduced into Part-II Chapter-I of the Constitution through the Constitution (Eighteenth Amendment) Act 2010. This Amendment established the right to access information as an independent fundamental right in matters of public importance. Article 19A is reproduced below for facility of reference:

19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

1. In Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292), the Supreme Court of Pakistan underscored the transformative impact of Article 19A in empowering citizens. It stated that this constitutional provision elevates access to information from a discretionary grant by the State to an enforceable right for the people. Article 19 has enabled every citizen to break free from the dominance of power centres that previously controlled information on matters of public importance. Additionally, the Supreme Court highlighted that this constitutional provision shields citizens from dependence on external sources or leaks for vital information, thus reinforcing the pillars of responsible and accountable governance as envisaged in the constitutional framework.

2. In Justice Oazi Faez Isa and others v. President of Pakistan and others (PLD 2023 SC 661), the Supreme Court highlighted that Article 19A of the Constitution is framed in "positive" terms, which signifies that it grants citizens the proactive right to access information. It restricts the State from withholding information on matters of public importance and mandates it to take active measures to ensure citizens' access to such information. The Supreme Court recognized that the State functions through its various organs - the Legislature, the Executive, and the Judiciary - and stressed that the responsibility to uphold the fundamental right outlined in Article 19A rests on all these branches.

3. The right to information granted under Article 19A of the Constitution is not absolute. It is subject to two things: (a) it is restricted to matters of public importance, and (b) it is subject to regulation and reasonable restrictions imposed by law. In the Province of Puniab v. Qaisar Iqbal and others (PLD 2018 Lahore 198), a Full Bench of this Court noted that Article 19A of the Constitution does not define the expression "public importance". Therefore, it adopted its dictionary meaning according to which it means "question which affects and has its repercussions on the public-at-large, and it also includes the purpose and aim in which the general interest of the community, particularly the interest of individual, is directly or widely concerned." In Justice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2023 SC 661), the Supreme Court elucidated the phrase "matters of public importance" occurring in Article 19A in light of the jurisprudence developed in respect of Articles 184(3), 186(1) and 212(3) of the Constitution, which employ similar terminology. The Supreme Court stated:

"Therefore, as per the judicial definition, the expression 'matters of public importance' used in Article 19A means the matters that pertain to and affect the public at large, a whole community, and not an individual or a small group of individuals. In other words, it includes the matters in which the general interest of a whole community, as opposed to the particular interest of individuals, is directly and vitally concerned. The adjective 'public' necessarily implies a matter relating to the people at large, the nation, the State or a community as a whole. If a matter in which only a particular individual or group of individuals is interested, and the people at large or an entire community have no interest, that cannot be treated as a matter of public importance."

1. The second vital condition specified in Article 19A of the Constitution is that the right to information is subject to regulation and reasonable restrictions imposed by law. In Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692), the Supreme Court defined the expression "reasonable restriction" as follows:

"It is certainly not easy to define 'reasonableness' with precision. It is neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness. However, factors such as the nature of the right infringed, the duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions are imposed are to be considered. The extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition. It needs to be kept in mind that 'reasonable' implies intelligent care and deliberation, that is, the choice of course that reason dictates. For an action to be qualified as reasonable, it must also be just right and fair, and should neither be arbitrary nor fanciful or oppressive."

1. The Punjab Transparency and Right to Information Act 2013 (the "Information Act") seeks to actualize the right to information guaranteed by Article 19A of the Constitution to the extent of the provincial bodies mentioned in clause (h) of section 2 of the Act. This legislation extends to the whole of the Punjab. On the other hand, Parliament has enacted the Right to Access to Information Act, 2017, which applies to all public bodies of the Federal Government.

2. The Punjab Assembly has also enacted Act I of 2016. The Punjab Safe Cities Authority was established under Act I of 2016 (the "PSCA Act") for the construction, development and maintenance of an integrated command, control and communication (IC3) system for police in major cities of the province for public safety through the use of modern technology, infrastructure and processes. In exercise of the powers conferred on it under section 19 of the PSCA Act of 2016, the Authority has framed PSCA Electronic Data Regulations 2016 ("EDR-16"), which cover the whole process of collection, analysis, storage, presentation and use of the electronic data. These are supplemented by the Standard Operating Procedures (SOPs) for PPIC 3 Centre, Lahore.

3. Recently, PSCA has developed the concept of Police Unified Communication and Response (PUCAR-15), which integrates 15 call centres and 15 response systems. It is operational across the province.

4. Regulation 3(2) of EDR-16 states that, through the IC3 Project, a quantum of electronic dat within the range of ancillary facility is generated (a) to help the prosecution in criminal cases, crime detection, investigating, inquiry or trial; and (b) to be used as an authentic piece of evidence in any investigation, inquiry, or trial; and (c) to maintain law and order. Regulation 2(1)(d) explains that " 'electronic data' means any probative data or information in the form of videos/audio/picture, stored or transmitted in electronic format or on electronic media duly collected, recorded, generated or extracted through the ancillary facilities/ equipment installed under the [PSCA] Act."

5. The PSCA has defined a procedure for the presentation of electronic data in Regulation No.9(1) of EDR-16. Regulation 9(1) stipulates that the PSCA shall only provide the data it collects to the Investigating Officers, law enforcement agencies (LEAs), courts, tribunals or any other authorized person for investigation, inquiry or trial as evidence. It follows that the PSCA's data can be used for certain specific purposes only, i.e. for matters under inquiry, investigation or trial. Most importantly, under EDR-16, no person, institution or office other than those mentioned above can apply for and obtain any data from the Authority EDR-16 prescribes a special form for electronic data requests (EDR Form), which means that a request to provide electronic data in any other mode is not entertainable.

6. According to Regulation 3(3) the electronic data generated through the IC3 facility shall be preserved and made available: (a) in the PSCA's Data Centre for 30 days except otherwise required by the PSCA; (b) for two months after it is stored in electronic data storage device [(defined in Regulation 2(1)(h)]; (c) upto seven years on instructions of the PSCA.

7. The PSCA Act of 2016, EDR-16, and the SOPs serve as regulatory framework for the PSCA to share the information it gathers. Notably, they do not prohibit the PSCA from sharing with the accused or the complainant party in a criminal case. Instead, they only establish procedural protocols and streamline the process to ensure that access is granted in a manner that prevents misuse and does not impede ongoing investigations. In Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109), the Supreme Court of Pakistan stated:

"It is a fundamental rule that where an enactment creates a new jurisdiction and prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive, and the party aggrieved of an order made in exercise of that jurisdiction must seek only such remedy and not others."

1. Mr. Ali has failed to persuade this Court that PSCA Act of 2016, EDR-16, or the SOPs contain anything that violates the Petitioner's rights under Article 19A of the Constitution - so far as this case is concerned.

2. In view of the above, if an officer investigating a case requires CCTV footage from the PSCA systems or '15' call data record, he may apply to PSCA on the EDR Form. On the other hand, if he requires CDRs from any cellular company, he must follow the law elucidated by a Full Bench of this Court in Mst. Saima Noreen v. State and another PLD 2024 Lah. 522. The law regarding probative value of CDRs and the guiding principles for their use in legal proceedings can inter alia be found in the said judgment and the following cases: Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675); Azeem Khan v. Mujahid Khan (2016 SCMR 274); Mian Khalid Perviz v. The State and another (2021 SCMR 522); Shameem Bibi v. The State and others (2022 SCMR 2077); Rashed alias Chand and others v. The State (2022 PCr.LJ 664) and Noor Ahmed alias Ahmed Agha v. The State (2022 PCr.LJ 1126).

3. The Petitioner's applications to Respondents Nos.1 and 2 were not maintainable for two reasons: first, they were on plain papers and not in the prescribed form (EDR Form); secondly, under Regulation 9(1), the PSCA is not authorized to entertain requests from private persons for the provision of any data. Only investigating officers, LEAs, courts, tribunals, or other authorized persons may collect specific data for a particular purpose in matters under inquiry or investigation or cases pending adjudication. Therefore, the PSCA rightly declined the Petitioner's request vide letter dated 19.10.2023.

4. Confronted with the above situation, Mr. Ali sought to invoke the Information Act of 2013 to assert the Petitioner's right to have the data in question. The Additional Advocate General responds that the PSCA Act of 2016 would prevail over the Information Act as it is a special law. I am inclined to agree with her. The 2013 Act deals generally with the right to information. The following excerpt from Allahabad Bank v. Canara Bank and another [(2000) 4 SCC 406], decided by the Indian Supreme Court, is instructive:

"At the same time, High Courts have rightly held that the Companies Act is a general Act and does not prevail under the RDB Act [Recovery of Debts due to Banks and Financial Institutions Act, 1993]. They have relied upon Union of India v. India Fisheries [1965 (3) SCR 679]. There can be a situation in law where the same statute is treated as a special statute vis-a-vis one legislation and again as a general statute vis-a-vis yet another legislation. Such situations do arise as held in Life Insurance Corporation of India v. D.J Bahadur [AIR 1980 SC 2181]. It was there observed: "for certain cases, an Act may be general and for certain other purposes, it may be special and the Court cannot blur a distinction when dealing with finer points of law". For example, a Rent Control Act may be a special statute as compared to the Code of Civil Procedure. But vis-a-vis an Act permitting eviction from public premises or some special class of buildings, the Rent Control Act may be a general statute. In fact in Damji Valji Shah and another v. Life Insurance Corporation of India and others (1965(3) SCR 665 = AIR 1965 SC 135 already referred to), this Court has observed that vis-a-vis the LIC Act 1956, the Companies Act, 1956 can be treated as a general statute. This is clear from para 19 of that judgment. It was observed: "Further, the provisions of the Special Act, i.e. LIC Act, will override the provisions of the general Act, viz; the Companies Act which is an Act relating to companies in general". Thus, some High Courts rightly treated the Companies Act as a general statute, and the RDB Act as a special statute overriding the general statute. Special law versus special law: Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will normally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely, section 34."

1. Even if it is assumed that the Information Act of 2013 is not a general law and both it and the PSCA Act of 2016 are special laws, the latter would take precedence as it was enacted subsequently. There is no clause in either statute giving it an overriding effect. Reliance is placed on Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and others (2001) 3 SCC 71.

2. It is noteworthy that section 13(1) of the Information Act of 2013 places certain restrictions on the disclosure of information by the provincial bodies. According to clause (f) of section 13(1), information required by an individual may be refused if deemed necessary for the administration of justice. This clause is quite expansive and can be invoked to reject the Petitioner's direct request for the data, requiring her to approach through the Investigating Officer.

3. According to Paul B. Weston et al., "criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine the truth as far as it can be discovered in any post-factum inquiry." Article 4 of the Constitution states that enjoying the protection of the law and being treated in accordance with the law is the inalienable right of every citizen, wherever he may be, and of every other person currently within Pakistan. Article 10A guarantees the right to a fair trial. Fair investigation is concomitant with this right. It is also recognized as essential to the right to life and personal liberty. It is a minimum requirement of the rule of law and necessary to ensure the integrity of the criminal justice system.

4. Section 4(1) Cr.P.C. gives a statutory definition of the term "investigation", stating that it encompasses all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) whom a Magistrate authorizes for this purpose. In Kailash Vijayrorgiya v. Rajlakshmi Chaudhuri (2023), the Supreme Court of India noted the investigative process under the Code generally consists of the following steps: (a) proceeding to the scene of the incident; (b) establishing the facts and circumstances surrounding the case; (c) identifying and apprehending the suspected offender; (d) collecting evidence relevant to the alleged offence, which may involve examination of various persons, including the accused, and documenting their statements if deemed necessary by the investigating officer; (e) conducting searches at relevant locations and seizing items deemed necessary for the investigation and potential trial; and (f) forming an opinion based on the collected evidence as to whether there are sufficient grounds to bring the accused before the Magistrate for trial, and if so, taking the necessary steps such as filing a report under section 173, Cr.P.C.

5. In Vinay Tyagi v. Irshad Ali alias Deepak and others [(2013) 5 SCC 762], the Supreme Court of India explained that in criminal jurisprudence, the expression "fair and proper investigation" connotes two things: firstly, the investigation should be honest, unbiased and in accordance with law, and secondly, the entire emphasis should be to dig out the truth and bring it before the court of justice. Rule 25.2(3) of the Police Rules, 1934, embodies this principle. It states that it is the duty of an investigating officer to find out the truth of the matter under investigation. His objective shall be to discover the actual facts of the case and arrest the real offender or offenders. He must not prematurely commit to any view of the facts for or against anyone. In Mst. Sughran Bibi v. The State (PLD 2018 SC 595), the Supreme Court of Pakistan emphasized that investigations must not be confined solely to the narrative presented in the FIR or the allegations contained therein. The Investigating Officer should not feel obligated to validate the accuracy of the incident as described in the FIR and should not allow the contents of the FIR to influence his judgment or control his actions. If the information received by the local police about the commission of a cognizable offence also contained a version as to how the relevant offence was committed, by whom it was committed, and in which background it was committed, then that version of the incident was only the version of the informant and nothing more. The Investigating Officer should not unreservedly accept such a version as the truth or the whole truth. Instead, following the registration of the FIR, he should conduct an impartial inquiry to ascertain the facts of the matter, gathering information from various sources and arriving at their own conclusions. The final report submitted under section 173, Cr.P.C. should reflect the Investigating Officer's independent opinion, uninfluenced by the statements or allegations made in the FIR.

6. There are frequent complaints against investigating officers, alleging that, due to dishonesty, negligence, or other factors, they fail to include crucial evidence in the case record, thereby impeding the fair adjudication of the matter. The present case is a classic example of such an instance. The Petitioner's husband, Ashfaq, stands accused of an offence under section 9-(1)3c of the CNSA, which is punishable with rigorous imprisonment up to fourteen years, with a minimum of nine years, and a fine ranging from eighty thousand to four hundred thousand rupees. The Petitioner believes that Ashfaq can be cleared of the charge if certain data from the PSCA is brought into the case file, but the law prohibits the PSCA from directly providing her with this data. The opposing party, in this case, is the police themselves. The Petitioner sought the indulgence of superior police officers, but they did not respond. Then she approached the Ex-officio Justice of Peace under section 22-A, Cr.P.C., but he also refused to intervene. It is necessary to outline what remedies an individual has when the police officer does not bring the relevant evidence on record, which is imperative for the just decision of the case.

7. The Police Order 2002 provides various remedies for the individual dissatisfied with the investigation of a case. Firstly, under Article 18(9), he can approach the supervisory officer charged with the duty to ensure timely completion and verification of the investigation. The said officer may summon the investigation officer, review the case file, evaluate the evidence, and issue instructions to the investigation officer in the form of a case diary. Article 18(10) provides that a supervisory officer not below the rank of a Deputy Superintendent of Police may verify the correctness of the investigation and the accuracy of the conclusions of the investigation by writing a case diary before submitting a report to the court. Secondly, the aggrieved person can seek the transfer of the investigation for which Article 18-A provides a complete mechanism. Thirdly, he can file a complaint to the Provincial Police Complaints Authority under Article 106. The P.P.C.A is an independent body that oversees the performance and accountability of the police. It can inquire into the complaint and direct the investigating officer to take appropriate action or refer the matter to the competent authority for disciplinary or criminal action against him.

8. An individual dissatisfied with the investigation may also invoke section 551, Cr.P.C., which reads as follows:

551. Powers of superior officers of police. - Police officers superior in rank to an officer in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.

1. An Ex-officio Justice of Peace can also be helpful to an individual aggrieved by police conduct. Clause (iii) of section 22-A(6), Cr.P.C. empowers him to issue appropriate directions to the concerned police authorities on a complaint regarding neglect, failure, or excess committed by a police officer concerning his functions and duties.

However, it is crucial to note that this provision is limited in scope. In Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470), a Full Bench of this Court ruled that the directives of the Ex-officio Justice of Peace under section 22-A, Cr.P.C. must conform strictly to the relevant legal framework. He must not usurp the powers of other authorities and address grievances directly. Nevertheless, there is an exception to this principle in cases where a clear legal obligation mandates a specific action by a police officer. In such instances, the Ex-officio Justice of the Peace may issue directives to ensure compliance with legal obligations. The Court further stated that the role of an Ex-officio Justice of Peace under section 22-A(6), Cr.P.C. is primarily that of a facilitator and mediator between complainants and the relevant police authorities. Effective communication and cooperation are essential for addressing grievances under this jurisdiction.

1. Section 36, Cr.P.C. stipulates that all Magistrates have the powers specified in the Third Schedule. Such powers are called the "ordinary powers". Section 37 further provides that, upon the High Court's recommendation, the Provincial Government may empower any Magistrate with additional powers listed in the Fourth Schedule alongside their ordinary powers. A review of the Third Schedule reveals that Magistrates of the First and Second Classes have the ordinary power under section 155(2), Cr.P.C. to direct the police to investigate cases involving non-cognizable offences where they have the jurisdiction to try or send to the Court of Session or the High Court for trial. It is well-settled that when a power is given to an authority to do something, it includes such incidental or implied powers that would ensure the proper doing of that thing. In other words, when the statute expressly grants any power, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Therefore, the aforementioned power to order the police to investigate cases involving non-cognizable offences under section 155(2), Cr.P.C. includes all such incidental powers essential to ensure a proper investigation.

2. Section 156, Cr.P.C. deals with the investigation of cognizable offences, and its subsection (3) plays a vital role in maintaining the rule of law. It empowers Magistrates to intervene when the police fail to address complaints or information concerning cognizable offences and ensures that they are investigated fairly, impartially, and thoroughly. In Mohd. Yousuf v. Smt. Afaq Jahan and another (AIR 2006 SC 705), the Supreme Court of India analyzed the scope of section 156(3) of India's Code of Criminal Procedure of 1973, which mirrors section 156(3) of our Code. It stated that while section 156(1) allows an officer in charge of a police station to investigate any cognizable offence without a Magistrate's order, section 156(3) empowers a Magistrate to intervene if needed. The Supreme Court highlighted that although the investigations under section 156(3) also end up with a report under section 173 - the same outcome as police-initiated investigations - the significant point is that investigations under section 156(3) occur before the Magistrate takes cognizance of the offence. Thus, it offers a pre-cognizance check on the police. The Supreme Court further stated that the investigation under section 156(3) is distinguishable from the one under section 202 of the Indian Code. The latter is limited in scope and is only to help the Magistrate decide whether to proceed further with the complaint.

3. In Sakiri Vasu v. State of U.P. and others (AIR 2008 SC 907), the Indian Supreme Court ruled that section 156(3) provides for a check by a Magistrate on the police. If he finds that they have not done their duty of investigating the case at all, or have not done it satisfactorily, he can issue necessary directives to ensure its thoroughness. The Supreme Court said: "Section 156(3), Cr.P.C., though briefly worded, is very wide and will include all such incidental powers as necessary for ensuring a proper investigation." It further stated that the Magistrate can also monitor the investigation under this provision.

4. In M. Subramaniam v. Janki (AIR Online 2020 SC 387), the Indian Supreme Court reaffirmed the above view, clarifying that although the Magistrate is empowered to monitor the progress of the investigation, he is not authorized to conduct the investigation himself because this responsibility lies with the police. Citing State of Bihar and another v. J.A.C. Saldanha and others (AIR 1980 SC 326), it stated:

"17. In our opinion section 156(3), Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3), Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

"18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution."

1. Here, I must also refer to section 94(1), Cr.P.C. It stipulates that whenever any court, or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for any investigation, inquiry, trial or other proceeding under the Code before it, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. The words "whenever" and "thing" in section 94, Cr.P.C. are significant. "Whenever" indicates that a court can exercise the power to require the production of any document or other thing at any stage during an inquiry or trial. The only condition is that it must be necessary or desirable for the proceedings.

2. In The State v. Chaudhrv Muhammad Usman (2023 SCMR 1676), the Supreme Court of Pakistan addressed two questions: (i) whether an accused can request the court, before the commencement of trial, to order the production of documents not covered under section 265-C, Cr.P.C., and (ii) whether an accused can make such a request before presenting a defence, despite the existence of section 265-F(7), Cr.P.C., which provides that, after entering on his defence, an accused can apply to the trial court to issue any process for compelling the production of any document. The Supreme Court answered both questions in the affirmative. It ruled that any party may apply to the court for an order under section 94, Cr.P.C. and the court would allow its request if the condition mentioned above is satisfied. It clarified that section 265-F(7) does not control or limit the power of a court under section 94(1). "The provisions of these two sections differ from each other in their extent and scope. They are not opposed to each other. Section 94(1) affords both the parties to an inquiry or trial (not to the accused alone) the opportunity of causing the production of any document at any stage of such inquiry or trial, with the condition that the party applying for it must satisfy the court that the production of the required document is necessary or desirable for the purposes of the inquiry or trial. Section 265-F(7), on the other hand, only gives the accused another similar opportunity at the stage of his defence subject to a lesser condition, which is that his application should not be for the purpose of vexation or delay or defeating the ends of justice."

3. In Shakeel Akhtar v. The State and others (2023 LHC 7704), this Court determined that the word "thing" in section 94, Cr.P.C. should be broadly construed to encompass anything relevant to the offence, the production of which would promote the cause of justice. The relevant excerpt is reproduced below:

"Section 94 Cr.P.C., Articles 24, 40, 59 and 164 of QSO [the Qanun-eShahadat 1984] and Rule 2 of Chapter 1-E, Volume III of the Rules and Orders of the Lahore High Court, must be given a purposive interpretation. In particular, the term "thing" used in section 94 Cr.P.C. and Article 161 of QSO must be given a broad meaning and understood to signify anything connected with the offence whose production will serve the interest of justice. In Abdul Latif Aassi v. The State (1999 MLD 1069 : 2001 P.Cr.R. 548), Asif Saeed Khan Khosa J. stated that contrary to the general perception that we have an adversarial justice system, sections 245(1), 540, 428 and 561-A Cr.P.C., Article 161 of QSO and Rule 2, supra, cut over that paradigm and allow the courts to take an inquisitorial approach in certain circumstances. Therefore, in a criminal case, a trial court can rectify an intentional or unintentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel by calling in evidence on its own if it can have a bearing on the determination of guilt or innocence of the accused person. Such authority must be granted to a criminal court in the larger interest of the community. The stage of the trial is irrelevant for this purpose. The only factor important for exercising such power is that the evidence called is relevant."

1. Sections 156(3) and 94(1) of the Code play crucial roles within the legal framework, contributing to the fair and effective administration of justice. Nevertheless, they serve different purposes. Section 156(3) empowers Magistrates to intervene when the police do not adequately address complaints or information regarding cognizable offences. It allows Magistrates to direct the police to investigate the alleged offence properly. In contrast, section 94(1) deals with the production of documents and evidence during legal proceedings (including investigation, inquiry, trial or other proceedings under the Code).

2. In summary, the Police Order 2002 and sections 22-A(6), 551, 155(2), 156(3), and 94 of the Code effectively address complaints regarding an unsatisfactory police investigation. These remedies are not mutually exclusive. However, an individual must be vigilant and resort to the most effective one in a given situation.

3. The right to a fair trial is as much to the accused as the complainant/victim party. In Zahira Habibullah Sheikh and another v. State of Gujarat and others (AIR 2004 SC 3114), the Indian Supreme Court stated that crimes are public wrongs that affect the entire community and emphasized the need to balance the interests of the accused, the victim, and society. The principles of the rule of law and due process are closely linked to human rights protection, and all parties involved in a criminal trial have the right to be treated fairly. In this view of the matter, the remedies available against flawed or dishonest investigations are equally accessible to both the complainant/victim party and the accused.

4. The High Court is the guardian of the people's fundamental rights. Article 199 of the Constitution empowers it to enforce fundamental rights through the constitutional remedy of writs. These writs include habeas corpus, mandamus, prohibition, quo warranto, and certiorari. In the seminal case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677), the Supreme Court of Pakistan held that the general rule is that the High Court has no jurisdiction under the Constitution or any other law, including the Code, to supervise the investigation of a criminal case or to control the agency conducting it. The constitutional jurisdiction of the High Court may be invoked if the investigation is mala fide or without jurisdiction. In such a situation, the High Court may even exercise power under section 491 Cr.P.C. - though not under section 561-A Cr.P.C. - to release a person if he is in detention. Several subsequent decisions approved this view. The following excerpt from Younas Abbas and others v. Additional Sessions Judze, Chakwal, and others (PLD 2016 SC 581) is quite instructive:

"The investigating authorities do not have an unfettered authority of running investigation according to their whim and caprice. They can be pushed back to their allotted turf if and when they overstep it. In the case of Anwar Ahmed Khan v. The State (1996 SCMR 24), this Court held that the High Court, in the exercise of its jurisdiction, was competent to pass necessary orders where investigation was mala fide or without jurisdiction to ensure justice and fair play. It was also held in the case of Muhammad Latif AS!, Police Station Sadar, Sheikhupura v. Sharifan Bibi and another (1998 SCMR 666) that the High Court in the exercise of its constitutional jurisdiction, could pass appropriate orders where the investigation is mala fide. In the case of Nasrullah Khan v. Manzoor Hussain and others (2004 SCMR 885), this Court declined to interfere with the order of the High Court directing the entrustment of the investigation of the case to some responsible officer of repute. In the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), this Court, after referring to a string of judgments of this Court, Privy Council and Indian Supreme Court reiterated the same principle."

1. In view of the above, the High Court retains the authority to intervene if the investigation appears to be conducted in bad faith or without jurisdiction. In specific situations where it is evident that an Investigating Officer is deliberately neglecting to secure crucial evidence, potentially motivated by ulterior motives, and the affected individual can demonstrate that he has no alternative adequate and efficacious remedy, which is a pre-requisite for invoking jurisdiction under Article 199 of the Constitution, the High Court may issue a writ of mandamus. Factors such as the involvement of police officers in the dispute or their direct or indirect interest in the investigation's outcome, as well as the risk of evidence destruction if timely action is not taken (as exemplified by the PSCA's practice of destroying records after a specified period), are crucial in determining whether the alternative remedy is adequate and effective and whether the High Court should exercise its constitutional jurisdiction.

Disposition

1. The Petitioner's applications before the PSCA (addressed to Respondents Nos.1 and 2) were not maintainable due to the reasons discussed in paragraph 27. Although she had remedies available under the Police Order, 2002 and sections 551 and 156(3) Cr.P.C., she did not pursue them. Instead, she filed an application under section 22-A Cr.P.C. before the Ex-officio Justice of Peace, who dismissed it through an order dated 07.11.2023. The dismissal was based on the premise that it would constitute interference in the investigation of FIR No.1701/2023, which is prohibited under the law. In my opinion, the Ex-officio Justice of Peace erred in this determination. As per Khizar Hayat's case, he could issue directives to senior police officers to redress the Petitioner's grievance.

2. The Petitioner filed this constitutional petition on 25.11.2023, i.e. 02 months and 12 days after the incident regarding which she has a cross-version. By that time, the video recordings had already been disposed of. As regards the CDRs mentioned by the Petitioner, the Additional Advocate General submitted that the Investigating Officer (Respondent No.7) obtained it during the pendency of this petition and placed it on the case file. In these circumstances, no further direction need be issued.

3. I may write an additional note before concluding this judgment.

2025 P Cr. L J 262

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

Muhammad Sibtain---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 564 of 2018, heard on 8th October, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about 12-hours in lodging the FIR---Consequential---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---From an in-depth analysis of record, it surfaced that the occurrence leading to the death of deceased took place on 31.03.2016 at about 09.30 p.m.---Perusal of column No.4 of FIR revealed that police station though was connected with the crime scene by a metalled road of 15 kilometers but still the details of the incident were imparted to police through oral statement of complainant on the following morning at about 09.00 a.m.---Complaint after twenty minutes of its completion was transcribed into formal FIR---If correctly calculated, there was a delay of about 12-hours noticed in the registration of FIR thus, the prosecution was legally obliged to satisfactorily explain it for providing strength to the hypothesis about the truth of its contents---Apparently, the complainant was well cognizant of discharging the burden of addressing the delay in registration of FIR and accordingly came forward with the stance that deceased was firstly taken to THQ Hospital from where he was dispatched to DHQ Hospital due to his critical medical condition---Such explanation turned out to be fragile and did not help the cause of prosecution for addressing the delay in registration of FIR---Admittedly, complainant had a mobile phone in his possession at the eventful time which he could conveniently use for intimating the police about the unfortunate incident but he opted not to use it, for reasons not disclosed by him---Such omission gained more significance when seen in the context that complainant requisitioned a vehicle at the crime scene through a call made from his own mobile phone for shifting deceased to hospital---Complainant initially did not inform the police about the occurrence, but still he could have done the same after reaching THQ Hospital but surprisingly nothing as such was done by him---Complainant without offering any reason candidly conceded that the task of intimating the police about the crime was performed on the following morning at about 06.00 a.m.---Without a speck of reluctance, it could be concluded that the enormous delay of 12-hours in the registration of FIR remained unexplained, a fact which shed doubt upon the truth of accusations set-out by the prosecution---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---Identity of accused not proved---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---Record showed that complainant and an eye-witness acquired knowledge about the incident much after its happening, thus, were clueless about the identity of the perpetrator---Fact remained that crime scene was situated at an isolated place and had no electricity connection, which further gave vent to the possibility that occurrence remained un-witnessed and the complainant after acquiring knowledge about it consumed the duration of 12-hours in knitting a false story---While dilating upon the prosecution case, it was found to be mainly structured upon the depositions of complainant and an eye-witness who were related with deceased as brothers-in-law---Admittedly, none out of them witnessed the actual incident and they simply claimed to have seen deceased coming out from the room wherein the crime scene was situated---Evidence of both the witnesses pertained to the event of coming across (waj takkar) the acceptance of which was urged by the prosecution on the principle of res gestae---Above all, the event of res gestae must be brought on record spontaneously and without lapse of any unnecessary delay---Though in the instant case, the incident of homicide and event of res gestae occurred in close proximity of time with each other but the fact remained that the detail of these two episodes was reported to police with an unexplained delay of 12-hours---Standard of proof for accepting the res gestae involved stringency of appraisal so as to exclude all the hypotheses of fabrication through consultation---In the instant case, the FIR mainstay of which was event of res gestae, was registered with enormous delay of 12-hours for which not even a frail explanation was offered---Due to such reason, the stance of both the witnesses was found doubtful---Appeal against conviction was allowed, in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Zaka Ullah v. The State 2021 PCr.LJ 1 and Sunil v.State of Kerala 2020 KER 401 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Chance witnesses---No justification for the presence of witnesses at the time and place of occurrence---Chance witnesses---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---Both the witnesses failed to substantiate the reason which prompted them to visit the house of deceased at the odd hours of night---For clarity of proposition, it was mentioned that the witnesses went to the house of deceased out of curiosity after noticing his absence from an ongoing marriage ceremony of their close relative---It was incumbent upon the prosecution to prove that in fact there was a marriage function but that onus was not discharged in any manner---Though according to prosecution case, marriage ceremony of Mr. "I" was going on but admittedly none from his family appeared before the Trial Court for endorsing the claim of the witnesses---Failure of prosecution to prove the truth of ongoing marriage function left both the witnesses with no reason to visit the house of deceased in the dark hours of night, rendering their depositions as of chance witnesses---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---Night time occurrence---Torch as a source of light---Scope---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---Eye-witnesses admitted in unequivocal terms that the house of deceased was situated in a suburbs of the village at an isolated place, having no electricity connection---For proving the identity of appellant as the assassin in an occurrence having taken place in a dark pitched night, prosecution was essentially required to prove the source of light for excluding the possibility of mistaken identity---Proving of light source in a night time felony was not a statutory requirement but a rule of caution followed inflexibly in every criminal case for proving beyond shred of any doubt the identity of the criminal---Moreover, it was light which enabled a witness to notice the lineament and physiognomy of the culprit---Complainant described a torch as source of light for identifying appellant at the eventful time, but torch was always regarded as a weak source of light in a night time homicide incident for identifying the culprit---Appeal against conviction was allowed, in circumstances.

The State v. Hakim Ali and 3 others 1996 PCr.LJ 231 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Unnatural conduct of witnesses---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---Eye-witnesses only had a momentary glimpse of appellant but found co-accused/widow of deceased present in the room in a nervous state of mind while having previous knowledge of the extra-matrimonial affairs between the two---Despite that, eye-witnesses made no effort to apprehend co-accused at the spot rather left her behind unattended while proceeding to THQ Hospital along with deceased---Such conduct ran contrary to the natural response which even an ordinary and rusty human was expected to demonstrate---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Co-accused acquitted on same set of evidence---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---Both the witnesses were disbelieved to the extent of co-accused and resultantly she was acquitted by the Trial Court---Though, criminal appeal against her acquittal was preferred but it met the fate of dismissal---Thus, it would wholly be unjust to place explicit reliance upon the statements of same set of witnesses for maintaining conviction of appellant who were disbelieved to the extent of his co-accused---Unambiguously, the acquittal of co-accused left a dent upon the credibility of the two witnesses as according to accusations, she was active participant of the crime---Evidence of witnesses who were disbelieved to the extent of one set of accused was also discarded against the convict---Appeal against conviction was allowed, in circumstances.

Altaf Hussain v. The State 2019 SCMR 274 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Improvements made by the witnesses in their evidence---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---Medico-Legal Certificate showed that deceased was brought to THQ Hospital in injured condition at 12.12 a.m. on 01.04.2016 by Mr. "M"---Admittedly, said Mr. "M" was related with deceased and co-accused (since acquitted) as father-in-law and father respectively---Even while appearing in the dock, Medical Officer admitted in clear terms that deceased was brought to hospital by none other than Mr. "M" as was evident from his cross-examination---Question arose that if at all, eye-witnesses shifted deceased to THQ Hospital in injured condition having knowledge about the involvement of co-accused in the crime then why they let Mr. "M" incorporate his name in the Medico-Legal Certificate as the person accompanying the victim---Answer to such query was neither offered during arguments nor was found discerning from record, which otherwise was silent on such point---Indeed, the said fact badly reflected upon the truth of deposition offered by eye-witnesses and in fact gave an undeniable clue about their absence from the spot---Last but not the least, it was observed that while appearing in the dock, eye-witnesses realizing the importance of lacuna emerging from the Medico-Legal Certificate wherein Mr. "M" was mentioned as attendant, they made material improvement in that regard---Complainant made addition in his Court statement to address the shortcoming emerging from Medico-Legal Certificate by saying that upon their arrival to THQ Hospital, they had seen co-accused and her father Mr. "M" sitting in the room of the doctor---Such improvement was duly attended by the defence and both the witnesses were accordingly confronted with their police statements in which no reference was made to such event---Even otherwise, if at all, Mr. "M" managed incorporation of his name in the Medico-Legal Certificate by using his good offices with the doctor, the complainant should have stoutly agitated that issue from the very inception of the case but nothing as such was done---Said omission shed light upon the truth behind the deposition of Medical Officer and the contents of Medico-Legal Certificate---As a necessary consequence, the presence of Mr. "M" in the hospital as the person who brought deceased to hospital in injured condition left no doubt that eye-witnesses indeed acquired knowledge about the incident much after it occurred---Appeal against conviction was allowed, in circumstances.

Ibrar Hussain and others v. The State and another 2007 SCMR 605 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of hatchet on the pointation of accused---Inconsequential---Accused was charged for committing murder of the brother-in-law of complainant by inflicting hatchet blow---According to the prosecution case, appellant was arrested on 05.08.2016 and four days thereafter he led to the recovery of hatchet in the presence of witnesses---Though according to the report of Forensic Science Agency the hatchet was found stained with human blood but no effort whatsoever was made to establish its nexus with the DNA of deceased---Bloodstained clothes of the deceased were available with the police and the needful could have been done easily---In the given circumstances, it could not be held with certainty that the blade of hatchet had the blood of none other than deceased---Even otherwise, recovery of hatchet could have been used for corroboration if the evidence of eye-witnesses had inspired confidence, which was lacking in the present case---Appeal against conviction was allowed, in circumstances.

(i) Criminal trial---

----Conviction---Scope---Benefit of doubt---Principle---Conviction must be based on unimpeachable, trustworthy and reliable evidence---Any doubt arising in prosecution case is to be resolved in favour of the accused as burden of proof is always on prosecution to prove its case beyond shred of any ambiguity.

(j) Criminal trial---

----Benefit of doubt---Principle---It is better to acquit ten guilty persons rather than to convict an accused on deficient prosecution evidence on the basis of sentiments and emotions alone.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Syed Mudasar Nazir Naqvi and Malik Muhammad Asif Nawaz for Appellant.

Ms. Mehmoona Ehsan-ul-Haq, Deputy District Public Prosecutor with Zahid ASI for the State.

Zulfiqar Ali and Sheikh Ahsan-ud-Din for the Complainant.

Date of hearing: 8th October, 2024.

Judgment

Ch. Abdul Aziz, J.--- Through the instant appeal Muhammad Sibtain (appellant) called in question the vires of judgment dated 30.05.2018 passed by learned Additional Sessions Judge, Talagang (Chakwal) arising out of case FIR No.75/2016 dated 01.04.2016 under Sections 302 and 34, P.P.C. registered at Police Station Saddar Talagang, District Chakwal, whereby he was convicted under Section 302(b) P.P.C. and sentenced to suffer life imprisonment with direction to pay Rs.5,00,000/- as compensation to the legal heirs of Arshad Mehmood (deceased) under Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. Benefit of Section 382-B Cr.P.C., however, was extended to the appellant.

1. Succinctly stated the case of prosecution as unveiled by Haji Akbar Khan (PW.6) in FIR (Exh.PE) is to the effect that he is resident of Rehman Abad and agriculturist by profession; that Arshad Mehmood is his paternal cousin and brother-in-law (sala); that the marriage of his close relative, namely, Iqrar son of Altaf was being solemnized and almost all members of his brotherhood used to assemble in the function every night; that Arshad Mehmood did not attend the marriage function on the night of 31.03.2016 upon which Muhammad Farooq and Duraiz Khan went to his house for inquiring about his absence; that at about 9:30 p.m. when they reached the courtyard of Arshad Mehmood, Muhammad Sibtain on hearing their conversation hurriedly came out from the house while having hatchet in his hand and decamped therefrom; that Muhammad Sibtain was identified by the complainant and other witnesses in the light of the torch; that they entered into the room and saw Arshad Mehmood having injury on his head from which blood was oozing out, whereas his wife Mst. Fazilat Bibi was standing alongside the cot; that on seeing them, Mst. Fazilat Bibi became perturbed and could not offer any reasonable answer about the injury on the skull of her husband; that they took Arshad Mehmood to THQ Hospital Talagang in injured condition from where he was referred to DHQ Hospital Rawalpindi for treatment; that when they crossed Chakri on motorway Arshad Mehmood succumbed to the injuries and he was taken back to THQ Hospital Talagang; that on many occasions Arshad Mahmood told the complainant and Duraiz Khan that Mst. Fazilat Bibi had illicit liaison with Sibtain and despite warning she did not mend her ways; that he had strong suspicion that Sibtain and Mst.Fazilat Bibi had committed murder of Arshad Mehmood so as to tie matrimonial knot.

2. On 01.04.2016 Mansoor Mazhar SI (PW.13) after receiving information about the occurrence reached THQ Hospital Talagang where Haji Akbar Khan (PW.6) got recorded his oral statement/Fard Bian (Exh.PG). He inspected the dead body of Arshad Mehmood, drafted application for postmortem examination (Exh.PA) and inquest report (Exh.PB). He dispatched the complaint (Exh.PG) to police station which was reduced into formal FIR (Exh.PE). He also received MLC (Exh.PM) of Arshad Mehmood. Thereafter he proceeded to the place of occurrence, collected blood through cotton vide memo. Exh.PJ. He also secured torch (P.4) through recovery memo. Exh.PH. He prepared rough site plan (Exh.PN). On 05.04.2016 he arrested Mst. Fazilat Bibi (since acquitted) and during interrogation in presence of PWs she made disclosure and led to the recovery of sleeping pills (P.6) from her house which I.O. took into possession through recovery memo. Exh.PK. On the same day, Muhammad Sibtain (appellant) was arrested and during the course of interrogation disclosed about the weapon of offence which he used in the occurrence and accordingly got recovered hatchet (P.5) which was taken into possession through recovery memo. Exh.PL. He recorded statements of the witnesses under section 161 Cr.P.C. Thereafter, on conclusion of investigation, report under section 173 Cr.P.C was submitted in the court whereupon, the trial of the case was held.

3. During trial the prosecution, in order to prove its case against the appellant produced thirteen witnesses including Haji Akbar Khan (PW.6) and Duraiz Khan (PW.7) who furnished the evidence of coming across (waj takkar), Dr. Malik Muhammad Zubair M.O. (PW.12) medically examined injured Arshad Mehmood through MLC (Exh.PM), whereas Dr. Kamran Hussain (PW.1) conducted autopsy of Arshad Mehmood through postmortem examination report (Exh.PC) and Mansoor Mazhar SI (PW.13) investigated the case.

4. After the conclusion of prosecution evidence, the learned trial court examined the appellant under section 342 Cr.P.C. The appellant refuted the allegations against him and pleaded his innocence. The appellant neither appeared under section 340(2) Cr.P.C. nor produced any defence evidence. After the completion of trial, the appellant was convicted and sentenced by the learned trial court as afore-stated, hence, the instant criminal appeal.

5. The learned counsel for the appellant contends that the prosecution failed to prove its case against the appellant beyond reasonable doubt; that the prosecution evidence has been disbelieved to the extent of acquitted co-accused, thus the superstructure of conviction cannot be raised on the same set of evidence against the appellant; that in fact the incident went unseen and the witnesses of coming across were subsequently planted for giving strength to the prosecution case; that Haji Akbar Khan and Duraiz Khan (PWs 6 and 7) miserably failed to prove their acclaimed presence at the spot; that the medical evidence is also in conflict with the ocular account and besides that the recovery of weapon statedly affected from the appellant is also not believable due to various flaws; that in the given circumstances neither the medical evidence supports the prosecution case nor there is any other corroboration and that in the given circumstances the conviction awarded to the appellant is to be set aside.

6. On the other hand learned law officer assisted by learned counsel for the complainant argued that the case in hand is arising out of a promptly lodged FIR in which the appellant is specifically named as the main culprit; that the detail of occurrence in this case was furnished by the witnesses who had no previous enmity with the appellant and otherwise properly explained their presence at the spot; that the appellant was previously known to the eye-witnesses, thus there was no chance of mistaken identity; that the corroboration, if any, can well be sought from the duly proved motive and recovery of weapon affected from the appellant and that since the prosecution successfully proved its case against the appellant to the hilt hence the conviction awarded to him calls for no interference.

7. Arguments heard and record perused.

8. A wade through the record reveals that the incident which gave birth to the instant case, took place on the night of 31.03.2016. According to case of prosecution, Haji Akbar Khan (complainant/PW.6) along with Duraiz Khan (PW.7) was attending an ongoing marriage function of a close relative namely Ikrar son of Altaf Hussain. At about 09.30 p.m. both of them noticed the absence of Arshad Mehmood (deceased) and out of curiosity proceeded to his house for ascertaining the reasons of such non-attendance. When both the PWs reached the courtyard of the house belonging to Arshad Mehmood (deceased), suddenly Muhammad Sibtain (appellant) came out from one of the rooms while having hatchet in his hands. The PWs identified Muhammad Sibtain (appellant) in the light of a torch whereafter he had a swift escape from the spot. Upon entering the room, both the PWs found Arshad Mehmood (deceased) laying on a cot while having a wound on his skull from which the blood was oozing out whereas Mst. Fazilat Bibi, the wife of Arshad Mehmood was also standing beside the cot in a confused state of mind. As per prosecution case, Arshad Mehmood was immediately shifted to THQ Hospital Talagang wherefrom he was referred to DHQ Hospital Rawalpindi on account of his precarious condition but he took last breath in the midway.

9. After having perused the record of case with utmost circumspection, it is noticed that the case of prosecution mainly hinges upon the following evidence:-

1. Deposition of Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) who claimed to have witnessed Muhammad Sibtain (appellant) coming out from the room in which Arshad Mehmood (deceased) was laying on a cot in injured condition.

2. Evidence of Shaukat Hussain (PW.9) who statedly saw Muhammad Sibtain (appellant) and Mst. Fazilat Bibi (since acquitted) sitting on same cot in the house of deceased shortly before the occurrence.

3. The motive set-out by the prosecution according to which an extra-matrimonial affair between Muhammad Sibtain (appellant) and Mst. Fazilat Bibi was canvassed as driving force behind the occurrence.

4. The medical evidence furnished by Dr. Zubair (PW.12) and Dr. Kamran Hussain (PW.1) as well as the recovery of hatchet (P5) statedly effected from Muhammad Sibtain (appellant) during investigation.

5. The recovery of hatchet effected from the Muhammad Sibtain (appellant) and the recovery of tablets got recovered in pursuance of disclosure made by Mst. Fazilat Bibi which statedly were used for intoxicating Arshad Mehmood (deceased) for his assassination.

1. From an in-depth analysis of record, it surfaced that the occurrence leading to the death of Arshad Mehmood took place on 31.03.2016 at about 09.30 p.m. The perusal of column No.4 of first information report (Exh.PE) reveals that police station Saddar Talagang though was connected with the crime scene by a metal road of 15 kilometers but still the details of the incident were imparted to police through oral statement (Exh.PE) of Haji Akbar Khan (PW.6) on the following morning at about 09.00 a.m. The complaint (Exh.PE) after twenty minutes of its completion was transcribed into formal FIR. If correctly calculated, there is a delay of about 12-hours noticed in the registration of FIR thus, the prosecution was legally obliged to satisfactorily explain it for providing strength to the hypothesis about the truth of its contents. Apparently, the complainant Haji Akbar Khan (PW.6) was well cognizant of discharging the burden of addressing the delay in registration of FIR and accordingly came forward with the stance that Arshad Mehmood (deceased) was firstly taken to THQ Hospital Talagang from where he was dispatched to DHQ Hospital Rawalpindi due to his critical medical condition. Such explanation turned out to be fragile enough and did not help the cause of prosecution for addressing the delay in registration of FIR. Admittedly, Haji Akbar Khan (PW.6) was having a mobile phone in his possession at the eventful time which he could conveniently use for intimating the police about unfortunate incident but he opted not to use it, for the reasons not disclosed by him. The aforementioned omission gains more significance when seen in the context that Haji Akbar Khan (PW.6) requisitioned a vehicle at the crime scene through a call made from his own mobile phone for shifting Arshad Mehmood (deceased) to hospital as is evident from the following extract of his deposition:-

"From the place of occurrence, we had gone to THQ Hospital, Talagang. I had summoned a car at the place of occurrence through phone."

The question of pivotal importance arises that if at all, due to some reasons, Haji Akbar Khan (PW.6) could not inform the police about the occurrence, still he could do the needful after reaching THQ Hospital Talagang but surprisingly nothing as such was done by him. Haji Akbar Khan (PW.6) without offering any reason candidly conceded that the task of intimating the police about the crime was performed on the following morning at about 06.00 a.m. Without a speck of reluctance, it can be concluded that the enormous delay of 12-hours in the registration of FIR remained unexplained, a fact which sheds doubt upon the truth of accusations set-out by the prosecution. Besides that, the delay of 12-hours further reflects upon the possibilities that Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) acquired knowledge about the incident much after its happening, thus, were clueless about the identity of the perpetrator. The fact that crime scene was situated at an isolated place and had no electricity connection, further gives vent to the possibility that occurrence remained unwitnessed and the complainant after acquiring knowledge about it consumed the duration of 12-hours in knitting a false story. Guidance in this regard can be sought from the case reported as Mst. Asia Bibi v. The State and others (PLD 2019 Supreme Court 64) wherein the Supreme Court of Pakistan held as under:-

"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. Furthermore, FIR lodged after conducting an inquiry loses its evidentiary value. [see: Iftikhar Hussain and others v. The State (2004 SCMR 1185)]. Reliance in this behalf may also be made to the case titled as Zeeshan alias Shani v. The State (2012 SCMR 428) wherein it was held that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful. Such a delay is even more fatal when the police station, besides being connected with the scene of occurrence through a metaled road, was at a distance of 11 kilometers from the latter. In the case titled as Noor Muhammad v. The State (2010 SCMR 97) it was held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the FIR, which time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. In the case titled as Muhammad Fiaz Khan v. Ajmer Khan (2010 SCMR 105) it was held that when complaint is filed after a considerable delay, which was not explained by complainant then in such situation it raises suspicion as to its truthfulness."

1. While dilating upon the prosecution case, it is found to be mainly structured upon the depositions of Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) who were related with Arshad Mehmood (deceased) as brothers-in-law (Behnoi). Admittedly, none out of them witnessed the actual incident and they simply claimed to have seen Arshad Mehmood (deceased) coming out from the room wherein the crime scene was situated. The evidence of both the witnesses pertains to the event of coming across (waj takkar) the acceptance of which is urged by the prosecution on the principle of res gestae. There is a pressing need to elaborate the term res gestae, which is defined in Black's Law Dictionary Tenth Edition as under:-

"The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to having a direct casual connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence."

The rule of res gestae is legally recognized in our country through Article 19 of Qanun-e-Shahadat Order, 1984 which for reference sake is reproduced hereunder:-

19. Relevancy of facts of forming part of same transaction. Fact which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and places.

Illustration (a)

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

In order to attain legal admissibility and credibility the event of res gestae must be so closely connected with the main occurrence so as to form one common transaction and there must not be any circumstance bisecting them from each other. The evidence of res gestae loses credibility if there is noticeable delay between the two events because the longer is the duration between them, greater is the possibility that these events are severed from each other on account of their genesis. Besides that, the event of res gestae must have close nexus with the main occurrence in reference to the nature of offence, identity of the culprit, the place and the time where it occurred. The concept of res gestae was elaborated by this Court in a case reported as Zaka Ullah v. The State (2021 PCr.LJ 1). The relevant extract from the said judgment is reproduced below for ready reference:-

"Bare look of Article 19 and the Illustration annexed therewith leads to the inference that an evidence/circumstance to attain the status of res gestae must be connected with the fact in issue in the manner so as to form same transaction. Such facts must be incidental and explanatory to the main occurrence and can even be arising out of acts or from words, performed or uttered by someone immediately after the event in question. The event of res gestae must also be closely connected with the fact in issue in term of proximity of time. The afflux of some delay between the fact in issue and the event canvassed as res gestae will separate them from each other giving rise to a possibility so as to be part of some other transaction."

Above all, the event of res gestae must be brought on record spontaneously and without lapse of any unnecessary delay. Though in the instant case, the incident of homicide and event of res gestae occurred in close proximity of time with each other but the fact remains that the detail of these two episodes was reported to police with an unexplained delay of 12-hours. The standard of proof for accepting the res gestae involves stringency of appraisal so as to exclude all the hypotheses of fabrication through consultation. In the instant case, it is already mentioned above that the FIR, mainstay of which is event of res gestae, was registered with enormous delay of 12-hours for which not even a frail explanation was offered. Due to this reason, the stance of both the PWs namely Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) is found surrounded amidst doubt. In the case reported as Sunil v. State of Kerala (2020 KER 401) while evaluating the evidence of witnesses narrating the event of res gestae, the court observed as under:-

"As far as evidence of PWs.1 to 4 is concerned, the principle of res gestae appears to be not applicable. The statement, of course, must have been made contemporaneously with the acts which constitute the offence for at least immediately thereafter. In this case, the facts are different. Although PW1 witnessed the occurrence on 07.11.2012 at 08.30 p.m., he lodged Ext.P1 FIR, before police on 08.11.2012 at 02.00 p.m. He had taken the injured to hospital along with PWs 2 and 4. They had interacted together. Thereafter, PW1 lodged Ext.P1 FIR, before police. In view of the above circumstances, it is very difficult to hold that the alleged declaration was simultaneous with the incident or substantially contemporaneous either during or immediately before or after the occurrence."

For adjudging the intrinsic worth of the evidence given by Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) the applicability of res gestae is not to be seen in isolation from other circumstances of the case rather is to be adjudged in conjunction with other factors like the delay in registration of FIR, credibility of the witnesses and the legal shortcomings arising out of their statements made during trial. It is already mentioned above that there is a noticeable delay of 12-hours in reporting the crime to the police and such time span was sufficient for the witnesses to knit a story even about an incident they never witnessed. Firstly, it is observed that both the witnesses badly failed to substantiate the reason which prompted them to visit the house of Arshad Mehmood (deceased) at the odd hours of night. For clarity of proposition, it is being mentioned that the witnesses went to the house of deceased out of curiosity after noticing his absence from an ongoing marriage ceremony of their close relative. It was incumbent upon the prosecution to prove that in fact there was a marriage function but this onus was not discharged in any manner. Though according to prosecution case, marriage ceremony of Ikrar son of Altaf was going on but admittedly none from his family appeared before the trial court for endorsing the claim of the witnesses. Beyond everything, even the veil was not lifted from the nature of this marriage function like music night, nikah or valima etc. The failure of prosecution to prove the truth of ongoing marriage function left both the PWs with no reason to visit the house of deceased in the dark hours of night, rendering their depositions as of chance witnesses. Secondly, Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) admitted in unequivocal terms that the house of Arshad Mehmood (deceased) was situated in the suburbs of the village at an isolated place, having no electricity connection. For proving the identity of Muhammad Sibtain (appellant) as the assassin in an occurrence having taken place in the dark pitched night, prosecution was essentially required to prove the source of light for excluding the possibility of mistaken identification. Proving of light source in a nighttime felony is not a statutory requirement but a rule of caution followed inflexibly in every criminal case for proving beyond shred of any doubt the identity of the criminal. It is the light which enables a witness to notice the lineament and physiognomy of the culprit and darkness leaves a witness clueless for ascertaining the identity of the culprit. Haji Akbar Khan (PW.6) described the torch as source of light for identifying Muhammad Sibtain (appellant) at the eventful time. The torch is always regarded as a weak source of light in a night time homicide incident for identifying the culprit. In the case reported as The State v. Hakim Ali and 3 others (1996 PCr.LJ 231) the frailty of torch as a source of light in a night time of occurrence was highlighted which for reference sake is referred hereunder:-

"Evidence relating to identification of accused in the torch light has always been treated as weak piece of evidence by superior Courts. It was held by a Division Bench of this Court in the case of Muhammad and others v. The State 1968 PCr.LJ 590 that the identification of the assailants by witness on dark night through his torch may lead to the possibility of mistaken identity and particularly in view of the previous enmity existing between the parties. In Suwali v. The State 1982 PCr.LJ 808, a Division Bench of this Court declared identification by flash of torch as highly suspicious. In the case of the State v. Fazal Muhammad and another 1970 PCr.LJ 633 it was held that the identification of the accused in the light of torch was never considered as sufficient piece of evidence."

Thirdly it is noticed that Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) only had a momentary glimpse of Muhammad Sibtain (appellant) but found Mst. Fazilat Bibi (co-accused) present in the room in a nervous state of mind while having previous knowledge of the extra-matrimonial affairs between the two. Despite that, Haji Akbar Khan and Duraiz Khan (PW.6 and PW.7) made no effort to apprehend Mst. Fazilat Bibi at the spot rather left her behind unattended while proceeding to THQ Hospital Talagang along with Arshad Mehmood. Such conduct runs contrary to the natural response which even an ordinary and rusty human is expected to demonstrate. Above all, both the PWs were disbelieved to the extent of Mst. Fazilat Bibi (co-accused) and resultantly she was acquitted by the trial court. Though, Criminal Appeal No.931-2018 was preferred before this Court by Haji Akbar Khan (PW.6) but it met the fate of dismissal. It will wholly be unjust to place explicit reliance upon the statements of same set of witnesses for maintaining conviction of appellant who were disbelieved to the extent of his co-accused. Unambiguously, the acquittal of Mst. Fazilat Bibi left a dent upon the credibility of the two witnesses as according to accusations, she was active participant of the crime. In the case reported as Altaf Hussain v. The State (2019 SCMR 274) the evidence of PWs who were disbelieved to the extent of one set of accused was also discarded against the convict with the following observation:-

"It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration."

Fourthly, it is noted from MLC (Exh.PM) that Arshad Mehmood (deceased) was brought to THQ Hospital Talagang in injured condition at 12.12 a.m. on 01.04.2016 by Mubaraz Khan son of Fazal Khan. Admittedly, aforementioned Mubaraz Khan was related with Arshad Mehmood (deceased) and Mst. Fazilat Bibi (since acquitted) as father in law and father respectively. Even while appearing in the dock, Dr. Malik Muhammad Zubair (PW.12) admitted in clear terms that deceased was brought to hospital by none other than Mubaraz Khan as is evident from the following extract of his cross-examination:-

"It is correct that Arshad Mehmood was brought by Mubaraz Khan son of Fazal Khan, who was his father-in-law according to the record."

The question arises that if at all, Haji Akbar Khan and Duraiz Khan (PWs 6 and 7) shifted Arshad Mehmood to THQ Hospital in injured condition having knowledge about the involvement of Mst. Fazilat Bibi in the crime then why they let Mubaraz Khan incorporate his name in the MLC as the person accompanying the victim. The answer to this query was neither offered during arguments nor is found discerning from record, which otherwise is in eternal silence on the point. Indeed, the aforementioned fact badly reflects upon the truth of deposition offered by Haji Akbar Khan and Duraiz Khan (PWs 6 and 7) and in fact gives an undeniable clue about their absence from the spot. Last but not the least, it is observed that while appearing in the dock, Haji Akbar Khan and Duraiz Khan (PWs 6 and 7) realizing the importance of lacuna emerging from the MLC (Exh.PM) wherein Mubaraz Khan was mentioned as attendant, a most unlikely person to be named as such, thus, they made material improvement in this regard. It is further observed that Haji Akbar Khan (PW.6) made addition in his court statement to address shortcoming emerging from MLC by saying that upon their arrival to THQ they saw Mst. Fazilat Bibi and her father Mubaraz Khan sitting in the room of the doctor. The aforementioned improvement was duly attended by the defence and both the witnesses were accordingly confronted with their police statements in which no reference was made to this event. The Supreme Court of Pakistan while embarking upon such issue held in the case reported as Ibrar Hussain and others v. The State and another (2007 SCMR 605) as under:-

"It is settled law that person making contradictory statements cannot be held worthy and credence as law laid down by this Court in Muhammad Shafique Ahmad's case PLD 1986 SC 471. It is a settled law that witness making improvements and changing version as and when suited according to the situation then such type of improvements were found deliberate and dishonest, therefore, cause serious doubt on the veracity of such witness." Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Naeem Inayat v. The State (2010 SCMR 1054)."

Even otherwise, if at all, Mubaraz Khan managed incorporation of his name in the MLC by using his good offices with the doctor, the complainant should have stoutly agitated this issue from the very inception of the case but nothing as such was done. The foregoing omission sheds light upon the truth behind the deposition of Dr.Muhammad Zubair Malik (PW.12) and the contents of MLC (Exh.PM). As necessary consequence, the presence of Mubaraz Khan in the hospital as a person who brought Arshad Mehmood (deceased) to hospital in injured condition leaves no doubt that Haji Akbar Khan and Duraiz Khan indeed acquired knowledge about the incident much after it occurred.

1. I have also given a due thought to the deposition of Shaukat Hussain (PW.9) who claimed to have seen Muhammad Sibtain (appellant) and Mst. Fazilat Bibi (since acquitted) sharing one common cot just 30 minutes before the occurrence in the same house under the rooftop of which Arshad Mehmood (deceased) endured fatal injury. Shaukat Hussain (PW.9) was admittedly nephew not only of the deceased but also of Haji Akbar Khan and Duraiz Khan (PWs 6 and 7). Despite acquiring knowledge about the actual occurrence, neither he went to the police station nor to the hospital and even opted not to disclose the detail of such an important event to the complainant before the registration of the FIR. On this score alone, the evidence of Shaukat Hussain (PW.9) is not worth reliance and even otherwise, he was not considered credible enough for awarding conviction to Mst. Fazilat Bibi who was acquitted by the trial court.

2025 P Cr. L J 286

[Lahore]

Before Muhammad Tariq Nadeem, J

Muhammad Dilshad and another---Appellants

Versus

The State and another---Respondents

Criminal Appeal No. 59174 and Criminal Revision No. 59075 of 2019, decided on 18th October, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence highly unnatural---Accused was charged for committing murder of the son of complainant by knife stabbing---Ocular account of the incident in question had been furnished by complainant/father and brother/ eye-witness of the deceased---According to the statements of said witnesses, the appellant borrowed money from deceased for the marriage expenditure of his sister and deceased demanded his money back, whereupon accused appellant stabbed knife on the right side of the back of deceased, due to which he fell down in an injured condition---Witnesses shifted injured to hospital and soon after reaching the hospital, he succumbed to the injuries---Complainant was aged about 80 years at the alleged time of occurrence and he had not stated that he used to sit at the shop with his deceased son---Investigating Officer of the case had admitted that eye-witness was employee of agricultural department, however, he did not produce any certificate of his leave, if any, before him prior to registration of FIR---Noteworthy that according to the prosecution evidence complainant and eye-witness shifted deceased in injured condition to THQ, Hospital, on a car---Seats of car were not stained with blood---Complainant had admitted in his cross-examination that they did not try to wrap the injury of his son with any piece of cloth, i.e. dhoti, turban or other types of clothes---Eye-witness deposed during his cross-examination that their clothes were not besmeared with the blood while attending to the deceased in injured condition---Said depositions of the eye-witnesses were not appealing to a prudent mind because how was it possible that when a person handles any injured person having severe stab wound on his body, the clothes of handling person would not be blood stained and similarly the seat of car wherein the injured person was shifted would not have blood stains, especially in the light of statements of eye-witnesses that they did not wrap injury of deceased---In such circumstances, it could be concluded that both the witnesses were not present at the time and place of occurrence---Story of following the deceased mentioned by eye-witnesses just before the occurrence did not appeal to common sense because no reasoning had been given by the said witnesses to go behind the deceased--- According to the prosecution story, complainant and eye-witness escorted deceased in injured condition to the hospital but both the witnesses were not witnesses of identification of dead body in the inquest report---Similarly, if witnesses were present in the hospital, question was why they had not identified the dead body of deceased at the time of his post mortem---Such fact showed that said witnesses were not present at the time and place of occurrence---Appeal against conviction was allowed, in circumstances.

Rohtas Khan v. The State 2010 SCMR 566; Liaqat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315; Zafar v. The State and others 2018 SCMR 326; Shaukat Hussain v. The State 2022 SCMR 1358; Jahangir and another v. The State and others 2024 SCMR 1741; 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.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant.

Muhammad Hassan and another v. The State and another 2024 SCMR 1427 and Iftikhar Hussain alias Kharoo v. The State 2024 SCMR 1449 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Inconsequential---Recovery of weapon of offence at the instance of accused---Accused was charged for committing murder of the son of complainant by knife stabbing---Record showed that the occurrence in this case took place on 31.01.2018, whereas, knife was allegedly recovered on 23.02.2018 from residential house of appellant---According to the statement of Investigating Officer the appellant was arrested on 16.02.2018, i.e. almost 16 days after the occurrence, therefore, appellant's act of preserving the crime weapon in his own house was against the nature, especially once the appellant decided to conceal the weapon, as was the case of the prosecution---There was no occasion for the appellant to keep the same in his safe custody so as to get the same recovered at a subsequent point of time and hand it over to police as a souvenir, therefore, the alleged recovery of knife was not helpful to the prosecution---Investigating Officer had not stated in his evidence that knife was blood stained, thus, the report of Forensic Science Agency had lost its significance and, in this way inconsequential to the prosecution case---Appeal against conviction was allowed, in circumstances.

Basharat and another v. The State 1995 SCMR 1735 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of the son of complainant by knife stabbing---Motive as per prosecution case was that the appellant borrowed money from deceased and when deceased demanded his money back the appellant committed the murder of son of the complainant---Motive was only an oral assertion of the complainant because no date, time and place as well as figure of borrowed money had been described by the witnesses---Investigating Officer had stated in his cross-examination that the complainant did not provide any details of money and also did not produce any witness for such outstanding amount---No detail regarding time and place for such outstanding amount was provided to him---In such circumstances, no material had been produced by the prosecution 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 which has to suffer and not the accused---Appeal against conviction was allowed, in circumstances.

Tajamal Hussain Shah v. The State and another 2022 SCMR 1567; Amir Muhammad Khan v. The State 2023 SCMR 566; Sarfraz and another v. The State 2023 SCMR 670 and Maqsood Alam and another v. The State and others 2024 SCMR 156 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---In the event of a doubt, the benefit of same must be given to the accused not as a matter of grace, but as a matter of right.

Muhammad Riaz v. Khurram Shahzad and another 2024 SCMR 51; Muhammad Nawaz and another v. The State and others 2024 SCMR 1731 and Rehmat Ullah and 2 others v. The State and others 2024 SCMR 1782 rel.

Malik Ejaz Hussain Gorcha for Appellant.

Abdur Rauf Wattoo, Deputy Prosecutor General for the State.

Ms. Bushra Qamar for the Complainant.

Date of hearing: 18th October, 2024.

Judgment

Muhammad Tariq Nadeem, J.---Muhammad Dilshad (appellant) was tried in case FIR No. 21 dated 31.01.2018 in respect of offences under sections 302/34, P.P.C. registered at Police Station Noorpur, District Khushab. After conclusion of the trial, the learned trial Court vide judgment dated 28.08.2019 convicted and sentenced the appellant as infra:-

Under section 302(b) P.P.C.

Life imprisonment for committing the murder of Muhammad Munawar and to pay compensation of Rs.5,00,000/- under section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months S.I.

Benefit of section 382-B, Cr.P.C. was also extended to him.

The appellant has filed the titled appeal against his conviction and sentence, whereas, Criminal Revision No. 59075 of 2019 has been preferred by Rana Muhammad Iqbal entreating enhancement of sentence of Muhammad Dilshad from life imprisonment to death. Since common questions of law and facts are involved, therefore, both these matters are being decided by mean of this single judgment.

1. The prosecution story as given in the opening paragraph of the impugned judgment passed by the trial court is reproduced as under:-

I am farmer by profession and resident of Adhi Kot. Accused Dilshad son of Muhammad Bashir borrowed money from my deceased son Muhammad Monawar aged 25/26 years six months before the occurrence for the marriage expenditure of his sister. My deceased son demanded the borrowed money from accused but accused Muhammad Dilshad behaved reluctantly to return the borrowed money. On 31.01.2018 my deceased son was going to shop from his house. I along with Muhammad Sarwar my son and Muhammad Awais son of Muhammad Sarwar caste Rajpoot PWs were coming behind Muhammad Monawar deceased at some distance. Muhammad Monawar my deceased son when reached on the opposite side of house of Qari Abdul Wahid at about 10:30 a.m. accused persons Dilshad armed with Qamanidar knife, Irshad, Mushtaq sons of Muhammad Bashir caste Rajpoot resident of village Adhi Kot appeared in front of Munawar my deceased son. Muhammad Monawar deceased son demanded to return the borrowed money from accused Muhammad Dilshad, at this accused Mushtaq raised lalkara and said we will taste him to demand borrowed money, meanwhile Dilshad has stabbed knife blow on the right side of the back (Peeth) of deceased Monawar, due to which he fell down on the ground. The occurrence was witnessed by me, Muhammad Sarwar and Muhammad Awais PWs. After seeing us accused Dilshad etc. ran away towards their house. Muhammad Monawar my deceased son was in injured condition, we shifted the injured on private vehicle to THQ hospital Noorpur Thal. Soon after reaching hospital my son Muhammad Monawar succumbed to the injuries in the hospital. Motive behind the occurrence is that accused Muhammad Dilshad borrowed money from my deceased son Muhammad Monawar. My deceased son demanded the same from Dilshad, due to this demand and grudge Dilshad etc. with common intention committed intentional murder of my son Muhammad Monawar. I was ready to go police station for registration of case but in the meanwhile Umar Farooq SI reached at Hospital after receiving the information, who record Farad Bayan Exh-PA on the statement of complainant which was read over to him and complainant signed it as token of correctness which bears his signatures as Exh-PA/1."

1. After completion of investigation, report under section 173 Cr.P.C. was submitted against the appellant. On indictment, the appellant pleaded not guilty and claimed trial.

In order to bring home the guilt of the appellant, the prosecution got examined as many as nine witnesses amongst whom Muhammad Iqbal complainant (PW1) and Muhammad Sarwar (PW7) have furnished the ocular account. Haji Mirza Muhammad Saeed, draftsman (PW6) prepared scaled site plan of the place of occurrence (Exh.PF and Exh.PF/1). Umar Farooq Shah S.I (PW8) being investigating officer stated about various steps taken by him during investigation of the case. Medical evidence was furnished by Doctor Zain ul Abiden (PW5), who while posted as Medical Officer at THQ Hospital Noorpur, conducted autopsy on the dead body of Muhammad Munawar (deceased) and issued his postmortem report (Exh.PC). The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up Nazakat Ali 338/C and Muhammad Asif son of Muhammad Aslam, PWs being unnecessary and after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore as Exh. PO and Exh. PP closed its evidence.

1. After completion of prosecution evidence, statement under section 342 Cr. P.C. of the appellant was recorded wherein he refuted the allegations levelled against him and claimed his innocence. While answering to a question, "why this case against you and why the PWs deposed against you? appellant replied as under:-

"The PWs are inter-se related, they have a criminal history and were having many enemies in the area. The PWs and the complainant have not advanced any reason of their presence at the place of occurrence, nor they adduced any physical circumstance of their presence at the place of occurrence. They are false motive witnesses, moreover, the PWs and the complainant involved our all adult members of the family in this occurrence. The story of the PWs was found false during the investigation of the case. These witnesses cannot be believed even against me. They have falsely involved me in this case."

He opted not to appear as his own witness within the scope of section 340(2) Cr.P.C. but produced statement of PW Muhammad Sarwar recorded by I.O. under section 161, Cr.P.C. on 31.01.2018 as Exh. DA, certified copy of FIR No. 301 dated 24.06.2010 of Police Station Jauharabad under section 489-F, P.P.C. Exh. PB, copy of FIR No. 120 dated 26.09.2003 under section 341, 342, 506, P.P.C. Police Station Noorpur Thal Mark-A, copy of FIR No. 55 dated 28.03.2014 under section 337-F(5), P.P.C. of Police Station Noorpur Thal Mark-B and copy of FIR No. 02 dated 26.12.2013 under section 489-F P.P.C. of Police Station 18-Hazari, District Jhang Mark-C in his defence.

1. The trial court vide impugned judgment held the appellant guilty, convicted and sentenced him as mentioned above, hence, this criminal appeal.

2. I have heard the arguments of learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.

3. The ocular account of the incident in question has been furnished by Muhammad Iqbal complainant (PW1) and Muhammad Sarwar (PW7) who were closely related to the deceased inasmuch as PW1 was his father and PW7 was real brother of the deceased. It is noteworthy that presence of the above mentioned eye-witnesses at the relevant time is highly unnatural. According to the statements of supra mentioned PWs the appellant borrowed money from Muhammad Munawar (deceased) for the marriage expenditure of his sister and deceased demanded money back but the appellant behaved reluctantly to return the borrowed money. On the fateful day the complainant's son namely Muhammad Munawar was going to his shop and complainant as well as his son namely Muhammad Sarwar (PW7) and grandson Muhammad Naeem Ullah Awais (jettisoned PW) were behind him at some distance and when they reached in front of house of Qari Abdul Wahid at 10.30 a.m., the appellant armed with clasp knife () along with co-accused Irshad and Mushtaq (since acquitted) emerged in front of Muhammad Munawar (deceased) when Muhammad Munawar (deceased) demanded to return the borrowed money then co-accused Irshad and Mushtaq raised lalkara that he be taught a lesson for demanding amount whereupon Muhammad Dilshad appellant stabbed knife on the right side of the back of Muhammad Munawar (deceased), due to which he fell down in injured condition. The PWs shifted Muhammad Munawar to hospital and soon reaching in the hospital, he succumbed to the injuries. I have noted that Muhammad Iqbal complainant (PW1) was aged about 80 years at the alleged time of occurrence and he has not stated that he used to sit at the shop with his son Muhammad Munawar (since deceased). Muhammad Iqbal (PW1) has also described about his other son namely Muhammad Sarwar (PW7) in his cross-examination as under:-

"It is correct that my son Muhammad Sarwar PW is an employee of agriculture department. It is also correct the office of agriculture department is located on Quaidabad Road near Mitha Tiwana morr and at a distance of half an hour from place of occurrence"

Similarly, Muhammad Sarwar (PW7) has stated in his cross-examination as infra:-

"I am permanent employee of the agriculture department. It is correct that the office of the agriculture department is located on the Quaidabad Road near Mitha Tiwana Morr. It is incorrect to suggest that the distance between my office and place of occurrence is nearly 5KM. Volunteers it is at a distance of half a KM. It is further incorrect to suggest that I was present on my duty in my office on 31.01.2018, i.e date of occurrence. It is incorrect to suggest that I have wrongly stated I was present on the place occurrence on the date of occurrence. I have stated in my statement before the police that I was on leave on the day of occurrence. Confronted with Ex.DA wherein it is not so mentioned. "

I have also observed that Umar Farooq Shah, SI (PW8) who was the investigating officer of this case has admitted it correct that Muhammad Sarwar PW was employee of agricultural department. He did not produce any certificate of his leave, if any, before him prior to registration of FIR.

It is noteworthy that according to the prosecution evidence complainant and eye-witnesses shifted Muhammad Munawar in injured condition to THQ, Noorpur Thal on a car and that was owned by Muhammad Aslam and it was 2D car. The seats of car did not stain with blood. He (PW.1) has admitted in his cross-examination that they did not try to rap the injury of his son with any piece of cloth, i.e. Dhoti, Turban or other types of clothes. Same was the statement of Muhammad Sarwar (PW7). Relevant portion of his cross-examination reads as under:-

"We did not try to wrap any piece of cloth on the injury of our injured brother Muhammad Munawar after the occurrence. Our clothes were not besmeared with the blood while attending Muhammad Munawar in injured condition. The seats of the car were also not stained with the blood."

The above mentioned depositions of the eye-witnesses are not appealing to a prudent mind because how it is possible that when a person will handle any injured person having severe stab wound on his body, the clothes of handling person would not be blood stained and similarly the seat of car wherein the injured person was shifted will not have blood stains, especially in the light of statements of eye-witnesses that they had not wrapped injury of Muhammad Munawar (since deceased) in injured condition at the place of occurrence. In the eventuality of above mentioned circumstances, I am quite confident to hold that both the above mentioned PWs were not present at the time and place of occurrence and the story of following the deceased by eye-witnesses just before the occurrence did not appeal to common sense because no reasoning has been given by the above mentioned PWs to go behind the deceased. I may refer here the case of "Rohtas Khan v. The State" (2010 SCMR 566) wherein it is held as under:-

"The story narrated by both the PWs is that they came out from the house to inform the deceased to buy some more articles does not appeal to common sense as in such a situation there was no need for two persons to come out from the house. It is usual practice that in such a situation always father will direct the son to do the needful. Further when they came out from the house the deceased was just at 10/15 paces away from them therefore they could have called him to inform to buy other articles. This was the natural conduct of an elder of the house particularly the father but instead thereof they were following the deceased and when the deceased reached near the mosque the incident took place. It is the case of the prosecution that there was a shop near the place of incident but the Investigating Officer in his statement denied the above fact by admitting that there was no shop near the place of occurrence."

Furthermore, the question of paramount consideration is that if such was the state of affairs coupled with the fact as per prosecution's own version the supra mentioned PWs and Muhammad Naeem Ullah Awais (jettisoned PW) were coming behind the deceased, then why they had not physically intervened and attempted to apprehend the appellant especially when he was not armed with any formidable weapon. I have noted that Muhammad Iqbal complainant (PW1) has admitted in his cross-examination that they had not tried to apprehend the accused. Relevant lines of his cross-examination read as under:-

"I, Awais and Muhammad Sarwar did not try to apprehend the accused. Volunteered we were at a distance of thirty feet from the place of occurrence."

Under the circumstances, it can be safely held that both the above mentioned eye witnesses were neither present at the spot at the relevant time nor they had witnessed the occurrence. I may refer here the case of "Liaqat Ali v. The State" (2008 SCMR 95). Similar view was reiterated by the august Supreme Court of Pakistan in the cases of "Pathan v. The State" (2015 SCMR 315), "Zafar v. The State and others" (2018 SCMR 326) "Shaukat Hussain v. The State" (2022 SCMR 1358) and "Jahangir and another v. The State and others" (2024 SCMR 1741).

1. Another important aspect of this case which cannot be lost sight of is that according to the prosecution story Muhammad Iqbal complainant (PW1) and Muhammad Sarwar (PW7) escorted Muhammad Munawar in injured condition to the hospital but both the above mentioned PWs are not witnesses of identification of deadbody in the inquest report (Exh.PE), similarly, if they were present in the hospital, why they had not identified the deadbody of Muhammad Munawar at the time of his post mortem. This fact has constrained me to hold that supra mentioned PWs were not present at the time and place of occurrence. Reliance is placed upon the following case laws titled 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).

2. Though, the medical evidence which is in the shape of statement of Dr. Zain ul Abiden, (PW5), who conducted autopsy on the dead body of Muhammad Munawar (deceased) and issued PMR (Exh.PC) is available but no other trustworthy direct or indirect evidence is available against the appellant, which could be supported by the medical evidence. It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Hassan and another v. The State and another" (2024 SCMR 1427) and "Iftikhar Hussain alias Kharoo v. The State" (2024 SCMR 1449).

3. So far as recovery of blood stained knife P-5 at the instance of the appellant, vide recovery memo. (Exh.PL) from his residential house and the positive report of Punjab Forensic Science Agency, Lahore (Exh.PO) are concerned, the same are not helpful to the prosecution as I have noted that the occurrence in this case took place on 31.01.2018, whereas, knife P-5 was allegedly recovered on 23.02.2018 from residential house of appellant. According to the statement of Umar Farooq Shah, SI/I.O. (PW8) the appellant was arrested on 16.02.2018, i.e. almost 16 days after the occurrence, therefore, preserving the crime weapon in his own house by appellant is against the nature, especially once the appellant decided to conceal the weapon, as is the case of the prosecution then there was no occasion that he would keep the same in such safe custody so as to get recover the same at a subsequent point of time and hand over to police as a souvenir, therefore, the alleged recovery of knife P-5 is not helpful to the prosecution. The Supreme Court of Pakistan in the case of "Basharat and another v. The State" (1995 SCMR 1735) disbelieved the evidence of blood-stained knife which was allegedly recovered from the house of accused after ten days of the occurrence. Relevant part of the said judgment is reproduced hereunder for ready reference:-

"The occurrence took place on 20.04.1988. Basharat appellant was arrested on 28.04.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.04.1988. It is not believable that he would have kept blood stained chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it"

I have noted that the witness of recovery Amir Shahzad 497/C (PW9) is a police employee and while effecting the above mentioned recovery of knife P-5 Umar Farooq Shah, SI/I.O. (PW8) has not made any effort to associate the people of the vicinity. He in his cross-examination has also conceded this aspect as infra:-

"I have not associated any Lumberdar or Councilor during recovery proceedings of the knife allegedly made by the accused. I have also not summoned any person from vicinity of the place of recovery to witness the recovery proceeding of knife."

In the light of above circumstances, I am of the considered view that while effecting the above mentioned recovery the mandatory provision of section 103, Cr.P.C. has blatantly been violated. Reference in this context may be made to the case of "Muhammad Ismail and others v. The State" (2017 SCMR 898).

Now adverting to the positive report of Punjab Forensic Science Agency, Lahore (Exh. PO) I have noted that Umar Farooq Shah, SI/I.O. (PW8) has not stated in his evidence that knife P-5 was blood stained. For the purpose of clarity relevant portion of his examination-in-chief is described below:-

"On 23.02.2018 Muhammad Dilshad accused was interrogated by me in this case and during interrogation he made disclosure regarding the knife (weapon of offence) (objected by defence counsel) and as a result of aforesaid disclosure Muhammad Dilshad accused led to the recovery of knife from inside the residential room of his house from an iron box. Knife P-5 sealed the same into parcel and took into possession through recovery memo. Exh. PL attested by Amir Shahzad 497/C and Nazakat Ali 348/C. I also prepared rough site plan Exh. PM of the place of recovery of knife and recorded the statement of attested witnesses"

In the light of above mentioned circumstances, when this Court has already disbelieved the recovery of knife P-5 and Umar Farooq Shah, SI/I.O. (PW8) has not stated in his evidence that knife P-5 was blood stained then the report of Punjab Forensic Science Agency, Lahore (Exh. PL) has lost its significance and, in this way inconsequential to the prosecution case.

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 prosecution case was that the appellant borrowed money from Muhammad Munawar (deceased) and when deceased demanded money back the appellant committed the murder of Muhammad Munawar son of the complainant. I have noted that motive was only an oral assertion of the complainant because no date, time and place as well as figure of borrowed money from the deceased by the appellant has been described by the PWs. Muhammad Iqbal complainant (PW1) has stated in his cross-examination as under:-

"while lodging the FIR I did not mention the amount of the borrowed money as the police said you might depose the amount Rs. 50,000.- before the court. "

Similarly, Muhammad Sarwar (PW7) has stated in his cross-examination as infra:-

"I stated about the borrowed amount in my statement before the Police. Confronted with Ex.DA wherein it is not so recorded. I also stated in my statement before the police about the place and time where the transaction of the borrowed amount took place. Confronted with Ex.DA wherein all these details are not mentioned. "

2025 P Cr. L J 311

[Lahore]

Before Aalia Neelum CJ and Asjad Javaid Ghural, J

Qaiser Abbas---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 250896 and Murder Reference No. 371 of 2018, decided on 2nd October, 2024.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Appreciation of evidence---Contradictions in the statements of witnesses---Dying declaration of deceased doubtful---Accused was charged for committing murder of the complainant by firing---First Information Report was registered on the verbal statement of complainant, then injured, at hospital under S.324, P.P.C---After that, complainant succumbed to the injuries at hospital and an offence under S.302 P.P.C was substituted---Deceased soon after the incident was taken to hospital, where he was given medical treatment by the Medical Officer---Dying declaration of the deceased complainant was recorded by Investigating Officer and signature of Medical Officer had been marked in which he categorically stated that accused had shot him with pistol 30-bore and his sister and brother brought him to the hospital---However, the testimony of Investigating Officer, Medical Officer and brother of deceased was belied by medical as well as documentary evidence---Dying declaration contained the signatures of Medical Officer, but that witness admitted during cross-examination that victim was in a semi-conscious condition and not fit to make a statement---Medical Officer's admission was very material and created doubt about the truthfulness of the dying declaration---Such circumstances showed that there was no occasion to record the dying declaration, which demolished the whole story of the dying declaration---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Appreciation of evidence---Dying declaration of deceased doubtful---Accused was charged for committing murder of the complainant by firing---Medical Officer, who conducted postmortem on the dead body of deceased, observed that the drain tube incision and stitch wound on the right iliac fossa oblique measuring 5xl cm marks were present---Such fact suggested that deceased then injured went through surgical process---When the Medical Officer referred the injured for a surgeon's opinion and provided medical treatment, it could not be said that he was in a condition to give a statement---In the inquest report, in the column of brief history, it was mentioned that the injured was referred to other hospital from a local hospital---Immediately after providing first aid, Medical Officer must have conducted a medico-legal examination first--- Time was mentioned as 1:40 a.m. on 26.08.2015, on the Medico-Legal Certificate---After that, the injured was sent for surgery and the prosecution did not produce the surgical unit/department record---Prosecution failed to establish where victim took his last breath---So, the time of writing the dying declaration was wrong---Record showed that the dying declaration was recorded much later, and the Medical Officer concerned unmindfully mentioned that the injured was fit to make a statement on the application for recording the statement of the injured---Why Medical Officer had not written said fact on the dying declaration, was surprising and raised eyebrows---Dying declaration and injury report were recorded at the same time---Due to the nature of the injury and abnormal pulse rate, a semi-conscious injured person was not expected to be able to depose a dying declaration---Thus, the dying declaration appeared to be highly doubtful---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of witnesses at the spot doubtful---Accused was charged for committing murder of the complainant by firing---As regard the place of occurrence, the Investigating Officer had stated that the place of occurrence was not the Haveli of the accused and the same was the Haveli of some other person---Besides being highly interested, all the prosecution witnesses had also made irreconcilable contradictions on material points, rendering their evidence incredible---With that background, the presence of the alleged eye-witnesses on the spot seemed doubtful---Such fact was a very serious infirmity that destroyed the credibility of the witnesses' evidence---If the evidence of such witnesses was rejected as untrustworthy, nothing survived in the prosecution case, and it would not be safe to rely upon such evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Scope---Accused was charged for committing murder of the complainant by firing---Motive behind the occurrence was stated to be an altercation between the deceased and accused prior to the occurrence---Motive set up by the prosecution in the fard bayyan, FIR and deposed by sister and brother of deceased had been found to have remained un-proved---Prosecution case in that regard was vague and could hardly inspire confidence---Sister of the deceased deposed that she did not record in her statement before the police that any altercation was happened in between his deceased brother and accused---Therefore, the evidence led by the prosecution in connection with motive was not sufficient for placing reliance on the testimonies of the witnesses for committing the occurrence---Motive was a double-edged weapon for the occurrence and for false implications---Moreover, there were always different motives that operated in the mind of the person in making false accusation---In the circumstances, the motive, as alleged, was an afterthought and had not been proved by any credible evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Inconsequential---Accused was charged for committing murder of the complainant by firing---No doubt 30-bore pistol along with two live bullets was allegedly recovered on the pointing of appellant-accused and there was no report of the Forensic Science Laboratory, that the weapon had matched with the crime empties---As such no crime empty was recovered from the place of occurrence which could be matched with the weapon recovered---Contrary to it, the report of Forensic Science Laboratory reflected that the allegedly recovered weapon was in working condition, therefore, there was no incriminating recovery in the case available on record to connect the appellant with the commission of offence---Appeal against conviction was allowed, in circumstances.

Ms. Rida Noor for Appellant.

Sohail Majeed Khan, Defence Counsel.

Rai Akhtar Hussain, Additional Prosecutor General for the State.

Mumtaz Ahmed Mangat for the Complainant.

Date of hearing: 2nd October, 2024.

Judgment

Aalia Neelum, C.J.---The appellant-Qaisar Abbas, son of Riaz Ahmad, Caste Jatt Warraich, resident of Saroki, Tehsil and District Gujrat, has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, Gujrat vide judgment dated 14.11.2018, in a State case FIR No.593/2015, dated 26.08.2015, offence under Section 302 P.P.C., registered at the Police Station, Kunjah, District Gujrat, whereby the learned trial court convicted the appellant-Qaisar Abbas, under Section 302 (b) P.P.C. and sentenced to death with the direction to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C, and in case of default in payment thereof, he would further undergo 06-months S.I.

1. Feeling aggrieved by the judgment of the learned trial court, the appellant-Qaisar Abbas, has assailed his conviction and sentence by filing an appeal bearing Crl. Appeal No.250896 of 2018. The learned trial court also referred M.R. No.371 of 2018 (The State v. Qaisar Abbas) to confirm the death sentence awarded to the appellant-Qaisar Abbas, as both the matters arising from the same judgment of the learned trial court are being disposed of through this consolidated judgment.

2. Briefly, the prosecution story as alleged in the FIR (Ex. PA) lodged on the statement (Ex. PP) of Khurram Shahzad, deceased (complainant) is that Khurram Shahzad, deceased (complainant), along with his brother, Naveed had come to the house of their sister namely, Mst. Salma Bibi, the wife of Ansar Ali, Caste Jatt Warraich, and a resident of village Sarokey, wanted to see their sister. On the night of 25/26.08.2015, at about 11:00 p.m., the complainant (since dead) was talking with his friend, Qaisar Abbas, the accused, and hot words were exchanged between them; after that, the accused, Qaisar Abbas, took away a pistol from his "dab" and stated to the complainant (since dead) that he would not let him alive. On hue and cry of the complainant (since dead), his brother, namely Naveed, and his sister, Salma, reached there. Qaisar Abbas, the accused fired straight at the complainant, hitting him on the right side of his chest, and the complainant (since dead) fell, and after that, the accused fled away. After that, the complainant (since dead) was brought to A.B.S hospital, Gujrat, in an injured condition; then he was shifted to Mayo Hospital, Lahore, where he (the complainant, since dead) succumbed to the injury and offence under Section 324, P.P.C., was substituted with an offence under Section 302, P.P.C.

3. After recording the statement (Ex. PP) of the complainant (since dead), a formal FIR (Ex. PA) was chalked out by Muhammad Qasim, T/ASI (PW-1). After the registration of the case, the investigation of this case was first entrusted to Faique Abbas, S.I (PW-5). After that, the investigation of this case was entrusted to Faiz Ahmad, S.I. (PW-12), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C. while placing the names of the accused in column No.3 of the Challan and sent the same to the court of competent jurisdiction. The learned trial court formally charge-sheeted the appellant on 04.02.2016, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as twelve (12) witnesses. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of Section 340(2) Cr.P.C. nor produced any defence evidence. In response to a particular question of why this case was against him and why the PWs deposed against him, the appellant made the following deposition: -

"The story of prosecution is totally false and fabricated one. It was a night occurrence, in fact, deceased of instant case was drunk when he left the house of his sister Salma Bibi and was armed with pistol. He entered in the house of a neighbourer at late night for his nefarious and ferocious designs, due to which, he received injury by any unknown person when he was all alone. This fact is further supported from Medico-legal certificate of then injured/deceased, Khurram Shahzad. Doctor recorded the statement of Salma Bibi which fortified the above mentioned fact regarding leaving the house in drunk and receiving firearm injury. The PWs are closely related with the deceased. I have been falsely implicated just to usurp my landed property. FIR was delayed one which was registered with premeditation and pre consultation with the connivance of the doctor and police. Then injured was not fit for statement but with mala fide intention and connivance of Faiq Abbas, S.I and doctor his statement was posed to be recorded by then injured which is totally wrong just to strengthen the false version of the prosecution. No person of locality i.e. village of occurrence endorsed the false version of prosecution. So much so, the brother of deceased Rana Muhammad Saeed and mother Zohra Bibi have not endorsed the version of Salma Bibi and others. I am innocent. I have been falsely implicated and have no concerned with the occurrence."

1. After recording evidence and evaluating the evidence available on record, considering arguments advanced from both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction as well as awarding of sentence to him in the afore-stated terms.

2. We have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.

3. The occurrence occurred on the intervening night of 25.08.2015 and 26.08.2015 at 11:00 p.m. in Saroki, situated within the jurisdiction of Police Station Kunjah, District Gujrat, which is 3-1/2 kilometers only from the place of occurrence. Whereas FIR (Ex. PA) was registered on 26.08.2015 at 04:30 a.m., on the verbal statement-Fard bayan of Khurram Shahzad, then injured, at ABS Hospital, Gujrat, on which FIR (Ex. PA) was registered under section 324 P.P.C. After that, Khurram Shahzad succumbed to the injuries at Mayo Hospital, Lahore, on 27.08.2015 at 06:05 a.m., and an offence under Section 302 P.P.C. was substituted. It was argued by learned D.P.G. that the FIR of the incident was lodged under section 324 P.P.C. on the intervening night of 25.08.2015 and 26.08.2015 at 4:30 a.m. The deceased, Khurram Shahzad, soon after the incident, was taken to ABS Hospital, Gujrat, where he was given medical treatment by Dr. Iqbal Hussain (PW-6) on 26-08-2015 in the night. His dying declaration was also recorded by Faique Abbas S.I. (PW-5), and the signature of Dr. Iqbal Hussain (PW-6) has been marked as (Ex.P.E/2) in which he categorically stated that accused Qaiser Abbas had shot him with pistol 30 bore and his sister Salma Bibi (PW-7) and brother Naveed (PW-11) brought him to the hospital. Faique Abbas S.I. (PW-5) deposed during the examination-in-chief that: -

"---On 26.08.2015, I was posted as ASI of Police Station Kunjah. On receiving information that one person has sustained a firearm injury and has been removed to ABS Hospital Gujrat, I promptly reached in hospital, made an application Ex.P.E to medical officer for recording statement of injured Khuram Shahzad son of Abdul Khaliq. My signatures over Ex.P.E is Ex.P.E/1, prepared injury statement Ex.P.F which bears my signatures Ex.P.F/1---On 26.08.2015, I recorded the statement of Khuram Shahzad (deceased) at ABS Hospital, Gujrat, which is Exh.P.P which bears signatures and thumb impression of Khuram Shahzad. I identified the signatures and thumb impression of Khuram Shahzad. His signatures and thumb impression is Exh.P.P/1 abd Exh,.P.P/2"

Faique Abbas S.I. (PW-5) deposed during the cross-examination that: -

"---I do not conversant with Khuram Shahzad prior to allegedly recording his statement. I have not seen any I.D card of Khuram Shahzad. I have not got attested the alleged statement of Khuram Shahzad by any doctor. I have also not annexed any video clip along with the alleged statement of Khuram Shahzad---"

Dr. Iqbal Hussain (PW-6) deposed during the examination-in-chief that: -

"---Faique Abbas ASI also moved an application Ex.P.E for recording the statement of the injured. I examined the patient. Patient is well oriented and fit for statement. Application for recording statement of injured bears my signatures Ex.P.E/2. After conducting medical examination I issued MLC Ex.P.I which bears my signatures Ex.P.1/1".

The testimony of Faique Abbas S.I. (PW-5), Dr. Iqbal Hussain (PW-6), and Naveed (PW-11) was belied by medical as well as documentary evidence. On perusing the medical examination certificate (Ex. PI/1), we found that Khurram Shahzad (then injured) was brought to the hospital by Javeed Iqbal 4007/C (PW-4) at 1:40 a.m., and immediately, medical treatment was provided. The column "General Physical Examination/Symptoms" mentions that "Semi-conscious BP 90/60 Plus 97/min," and medical treatment was provided against police docket No. 38. Dr. Iqbal Hussain (PW-6) deposed during the cross-examination that: -

"---It is correct that whenever any injured is brought to hospital and if he is in his senses, we record his statement in brief history otherwise statement of any person accompanied by said injured is recorded. It is correct that in MLR of the injured Khuram Shahzad statement of his sister Mst. Salma Bibi has been recorded----It is correct that I recorded the statement of the sister of injured Khuram Shahzad because of the fact that injured was not in a fit condition to give his statement"

In the column concerning "brief history," it was noted that the statement of Salma Bibi (PW-7), the sister of Khurram Shahzad, was recorded, which is reproduced as under: -

Javed Iqbal 4007/C (PW-4) has not deposed that he accompanied the injured for medical examination to ABS Hospital, Gujrat; rather, he stated that after the medical examination, he produced MLC (Ex. PI/1) of the injured Khurram Shahzad before the investigating officer. Faique Abbas S.I. (PW-5) deposed during the cross-examination that: -

"---The information of the alleged occurrence was received at Kunjah on the mid night of 26/27.05, again stated 08th month of 2015 at about 11/12'o clock through mobile phone---I did not enter in the relevant about the person through whom I received the information-The person who gave telephonic information did not mention the name of any accused and manner of occurrence. I did not mention about the receipt of alleged occurrence in the relevant register---On injury statement, the factum of being injured was told by some person, again stated that it was told by the concerned injured---Rupt No.38 dated 26.08.015 is not attached with the record---It is correct that the FIR of alleged occurrence was registered with the delay of about five to six hours---"

On perusal of the injury statement (Ex. PF) (available on page No. 125-A of the paper book), it reveals that the same was prepared at Police Station Kunjah, District Gujrat, and the injured was referred to hospital through Javeed Iqbal 4007/C (PW-4). The scanned copy of the injury statement is reproduced as follows: -

Faique Abbas, S.I (PW-5)-the investigating officer deposed during cross-examination that: -

"---It is correct that as per column No.1 of inquest report Ex.P.L, the dead body of deceased Khuram Shahzad was recovered from village Sarookey---"

The dying declaration (Ex-PP) contains the signatures of Dr. Iqbal Hussain (PW-6), but this witness admitted during the cross-examination that Khurram Shahzad was in a Semi-conscious condition and not fit to make a statement. Dr. Iqbal's admission is very material and creates doubt about the truthfulness of the dying declaration. These circumstances show that there was no occasion to record the dying declaration, which demolishes the whole story of the dying declaration. The time of the dying declaration and the medico-legal examination are relevant facts. Under Article 46 of the Qanun-e-Shahadat Order, 1984, the sanctity of a dying declaration must be evaluated with great care and caution, and the evidence of a dying declaration must be appreciated with due diligence. A dying declaration is a question of fact that has to be determined by the facts of each case. A case must be considered in all its physical environment and circumstances to discover the truth or falsity of a dying declaration. The courts below have to be extremely careful when they deal with a dying declaration, as the maker is not available for cross-examination, which poses great difficulty to the accused person. A mechanical approach of relying upon a dying declaration just because it is there is extremely dangerous. The courts insist that the dying declaration should be of such nature as to inspire the full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Usually, therefore, the court looks up to the medical opinion to satisfy whether the deceased was in a fit mental condition to make the dying declaration. Dr. Iqbal Hussain (PW-6) mentioned in MLC (Ex. PI/1) that the time of the medico-legal examination is 1:40 a.m. on 26.08.2015, after two hours and forty minutes and Faique Abbas S.I. (PW-5) recorded verbal statement-Fard bayan (Ex.PP) of Khurram Shahzad, then injured, at ABS Hospital, Gujrat, at 04:30 a.m. on 26.08.2015. As soon as the injured is brought, the doctor takes automatic steps for first aid, and since the doctor sent Khurram Shahzad, who was then injured, for a chest x-ray, the radiologist and surgeon's opinion. Dr. Iqbal Hussain (PW-6) deposed during the cross-examination that: -

"---It is correct that I advised for x-ray and opinion of radiologist and surgeon. It is correct that opinion of Surgeon and radiologist is not part of MLR"

Dr. Muhammad Ali (PW-10), who conducted a postmortem on the dead body of Khurram Shahzad, observed that the drain tube incision and stitch wound on the right iliac fossa oblique measuring 5x1 cm marks were present. It suggests that Khurram Shahzad went through the surgical process. When the doctor referred the injured (Khurram Shahzad) for a surgeon's opinion, and provided medical treatment, it can not be said that he was in a condition to give a statement. In the inquest report (Ex.PL), in the column of brief history, it is mentioned that the injured Khurram Shahzad was referred to Mayo Hospital from ABS Hospital. Saqib Nazir 378/C (PW-3) deposed during his examination-in-chief that he escorted the dead body of Khurram Shahzad to A.B.S. Hospital, Gujrat. Still, he had not deposed wherefrom he escorted the dead body of Khurram Shahzad to A.B.S. Hospital, Gujrat. In the column of brief history of inquest report (Ex. PL), it was mentioned as under: -

Immediately after providing first aid, Dr. Iqbal Hussain (PW-6) must have conducted a medico-legal examination, first. The time is 1:40 a.m. on 26.08.2015, written on the MLC (Ex. PI/1). After that, the injured was sent for surgery, and the prosecution did not produce the surgical unit/department record. The prosecution failed to establish where Khurram Shahzad took his last breath. So, the time of writing the dying declaration is wrong. It appears that the dying declaration was recorded much later, and the doctor concerned unmindfully mentioned that the injured was fit to make a statement on the application for recording the statement of the injured (Ex. PD). Why he (PW-5) has not written said fact on the dying declaration, is surprising and raising eyebrows. The dying declaration and injury report were recorded at the same time. Due to the nature of the injury and abnormal pulse rate, a semi-conscious injured person is not expected to be able to depose the dying declaration. Thus, the dying declaration appears to be highly doubtful. However, during cross-examination, he admitted that the sister's statement of the injured Khurram Shahzad was recorded because the injured Khurram Shahzad was not in a fit condition to give his statement. Thus, the conduct of the medical officer concerned is highly questionable. The prosecution witnesses have not deposed that Khurram Shehzad was shifted to Mayo Hospital Lahore for medical treatment, when and who took/shifted him to Mayo Hospital Lahore. Dr. Iqbal Hussain (PW-6) also did not depose in his examination-in-chief that he referred Khurram Shehzad to Mayo Hospital Lahore for medical treatment. It is also not mentioned in the MLC (Ex. PI/1) that Khuram Shehzad was referred injured to Mayo Hospital Lahore for medical management. Salma BiBi (PW-7) and Naveed (PW-11), sister and brother of Khurram Shahzad, also did not depose in their examination-in-chief that they shifted the injured to Mayo Hospital Lahore for medical treatment where he lost his life. During cross-examination, Salma BiBi (PW-7) deposed that she remained for about two and a half hours in the hospital, the time so becomes about 1:40 a.m. on 26.08.2015. What happened from 1:40 a.m. on 26.08.2015 till 06:05 a.m., on 27.08.2015 i.e. the time when Khurram Shahzad expired, which is the time and date mentioned by Dr. Muhammad Ali (PW-10), on the post-mortem examination report, the prosecution story is silent. A similar statement is given by Naveed (PW-11); apart from this, the prosecution story is silent as to when Khurram Shahzad breathed his last and who brought his dead body to ABS Hospital Gujarat. Faique Abbas, S.I./I.O. (PW-5) does not depose in his statement that he brought the dead body of Khurram Shahzad to ABS Hospital Gujarat from Mayo Hospital, Lahore, while Faiz Ahmed S.I./I.O. (PW-12) mentioned in the column of the brief history of inquest report (Ex. PL) that Faique Abbas, S.I./I.O. (PW-5) brought the dead body of Khurram Shahzad from Mayo Hospital Lahore to A.B.S. Hospital, Gujrat.

1. In the FIR (Ex. PA), there is a mention that on the hue and cry of the complainant, Khurram Shahzad (since dead), his brother, namely Naveed, and his sister, Salma Bibi, reached the place of occurrence. Qaisar Abbas fired straight at the complainant, hitting him on the right side of his chest. The names of the witnesses were mentioned in the FIR (Ex. PA). Salma Bibi (PW-7) deposed during the cross-examination that:-

"---It is correct that I got recorded in my statement before the police that I was sitting inside the house whereas accused Qaiser Abbas and deceased Khuram Shahzad were sitting outside the house. I got recorded in my statement before police that after hearing noise I went out the house---I did not get recorded in my statement before the police that any altercation was happened in between my brother Khuram Shahzad and accused Qaiser Abbas within the area of Sarokey. I got recorded in my statement in the court that deceased Khuram Shahzad and accused Qaiser Abbas were sitting in the haveli---it is correct that there is small path and a "Nala" in front of our house. Door of our house opens in the street. It is correct that no witness from the surrounding houses is in this case. My brother Naveed PW arrived in the village one day prior to the occurrence---I do not know that normally there is tradition in the villages that people sleep after offering Esha prayer. I do not know that whether deceased Khuram Shahzad and accused Qaiser Abbas were sitting on the ground, or on the cots or on the chairs. I do not know how much time it will take of the journey from our village to the hospital. I do not know the distance in between Police Station Kunjah and our village---"

Naveed (PW-11) deposed during the cross-examination that: -

"-I and Khuram Shahzad came from Lahore to Sarookey on the same day i.e. on 25.08.2015. Occurrence was happened on 26.08.2015---The injured was shifted to Hospital by "1122". I off and on visit the house of my sister Salma Bibi---I do not know that whether accusing Qaiser Abbas and deceased were sitting on the ground, on cots or on the chairs---"

The dying declaration (Ex. PP) of Khurram Shahzad reveals that he went to the Haveli of Qaiser Abbas, the accused, where the incident took place. In the dying declaration (Ex. PP) of Khurram Shahzad, it was mentioned as under: -

The presence of the witnesses at the Haveli at about 11:00 P.M. and near the place of occurrence is highly improbable. Faique Abbas S.I. (PW-5) deposed during the cross-examination that: -

"---It is correct that information about alleged occurrence was not given by Salma Bibi and Naveed PWs of the instant case. It is correct that any figure of concerned locality did not support the version of prosecution's case. The information of the alleged occurrence was received at Kunjah on the mid night of 26/27.05, again stated 08th month of 2015 at about 11/12'o clock through mobile phone---I did not enter in the relevant about the person through whom I received the information---The person who gave telephonic information did not mention the name of any accused and manner of occurrence. I did not mention about the receipt of alleged occurrence in the relevant register. On injury statement, the factum of being injured was told by some person, again stated that it was told by the concerned injured---It is correct that I went through the medical certificate of then injured and perused the same kept in the case file. It is correct that as per Exh.P.I, as per statement of sister of injured, injured had drunk and he came out of his taking pistol with him, entered into the house of neighbour, quarrel took place and fire hit. It is correct that as per Exh.P.I, the medical certificate of then injured, sister of injured did not nominate accused Qaiser Abbas present in the court. When I prepared sketch of injuries Exh.P.G, no person was present. It is correct that on Exh.P.G the name of any accused could not mention. Rupt No.38 dated 26.08.2015 is not attached with the record---It is correct that medical of injured was conducted through police. As per Exh.P.G, according to the sister of then injured Salma Bibi has not deposed that she herself witnessed the occurrence nor Naveed PW witnessed the occurrence. It is correct that when I saw the then injured, he was wearing only "pent". No mobile, perse or any other articles of the then injured was not taken into possession by me. It is correct that besides the house of accused Qaiser, no Haveli of said accused was situated there. It is correct that as per statements of Salma PW and Naveed PW dated 26.08.2015, the alleged occurrence took place in the Haveli of Qaiser accused. It is correct that in the house of Qaiser accused shown in site plan Exh.P.F, the alleged occurrence or the collection of bloodstained was not found proved. It is correct that whatever was pointed by the PWs, I prepared the site plan, Exh.P.F, accordingly. It is correct that I did not show the residence of sister of the then injured or PWs near or around the haveli of Muhammad Aslam son of Nazar Muhammad or the house of Qaiser accused in Exh.P.F. The house of complainant party was situated with the gape of three to four houses from the house of Qaiser accused shown in Exh.P.F---It is correct that the FIR of alleged occurrence was registered with the delay of about five to six hours---"

Faiz Ahmad S.I./I.O. (PW-12)-investigating officer deposed during cross-examination that:

"---It is correct that when the investigation of the instant case was entrusted to me I went through whole of the record. As per statement of PW Salma Bibi mentioned on Exh.P.I, Khuram Shahzad, the then injured was drunk when he went out from his house while taking pistol with him and he went to the house of neighbourer and where fight took place and fire was hit. It is correct that in said statement of PW-7 Salma Bibi there is no mentioned of accused who made fire shot. It is correct that as per column No.1 of inquest report Ex.P.L, the dead body of deceased Khuram Shahzad was recovered from village Sarookey. It is correct that on 27.08.2015 one Rana Muhammad Usman joined investigation. Said Rana Muhammad Usman was the relative of deceased Khurram Shahzad as well as PWs Salma Bibi and Naveed. It is correct that said PW Rana Muhammad Usman did not support the statements of PWs Naveed and Salma Bibi. PW Naveed is the real brother of deceased Khuram Shahzad---"

It is the prosecution's case that the incident took place in the house of Qaiser Abbas, the accused, and on the pointing of Salma Bibi (PW-7) and Naveed (PW-11), the unscaled site plan (Ex. PN) was prepared by Faiz Ahmad S.I./I.O. (PW-12)-investigating officer. Faiz Ahmad S.I./I.O. (PW-12)-investigating officer deposed during examination-in-chief that: -

"---On 29.08.2015, I summoned the brother of the complainant Naveed and Muhammad Asif Akhtar Naqash draftsman and took rough notes from the place of occurrence. Draftsman prepared scaled site plan and handed over to me three leaves Exh.P.B/1-3. I made red notes upon Exh.P.B. My red notes are Exh.P.B/4-6. I recorded the statement of draftsman under section 161 Cr.P.C---"

Faiz Ahmad S.I./I.O. (PW-12)-investigating officer deposed during cross-examination that: -

"-It is correct that I got prepared site plan Exh.P.B on the pointation of PWs Salma Bibi and Naveed which I signed on 03.09.2015. It is correct that as per site plan Exh.P.B, the occurrence took place in the Havaili of Muhammad Aslam son of Nazar Muhammad. It is correct that as per my investigation occurrence took place in the house of above said Muhammad Aslam. It is correct that during my investigation, occurrence did not take place in the house/Havaili of Qaiser Abbas accused. It is correct that on the pointation of PWs Salma and Naveed, site plan Exh.P.B was prepared and the place of occurrence was found the house of above said Muhammad Aslam. It is correct that aforementioned Muhammad Aslam did not join investigation in support of the version of the complainant party. It is correct that said Muhammad Aslam is not the witness of said case---It is correct that the aforementioned Haveli/house, was consisted on four boundaries, having an iron gate. It is correct that I did not show the house of PWs Salma Bibi and Naveed, situated around the place of occurrence---it is correct that accused Qaiser had independent house in village Sarokey. Nothing was recovered from the house of accused Qaiser---".

Salma Bibi (PW-7) deposed during the cross-examination that: -

"---It is correct that there is small path and a "Nala" in front of our house. Door of our house opens in the street. It is correct that no witness from the surrounding houses is in this case. My brother Naveed PW arrived in the village one day prior to the occurrence---I do not know that normally there is tradition in the villages that people sleep after offering Esha prayer. I do not know that whether deceased Khuram Shahzad and accused Qaiser Abbas were sitting on the ground, or on the cots or on the chairs. I do not know how much time it will take of the journey from our village to the hospital. I do not know the distance in between Police Station Kunjah and our village---"

Naveed (PW-11) deposed during the cross-examination that: -

"---It is correct that adjacent to the house of my sister Salma Bibi there is a path and a "Nala" (drainage) in front of her house. The door of the house of Salma Bibi opens towards passage. There are two doors of the house of my sister Salma Bibi and both doors open on the side of said path---We pointed the place of occurrence to I.O as well as the point where we were sitting---"

The prosecution also has not proved the place of occurrence. Faiz Ahmad S.I./I.O. (PW-12)-investigating officer deposed during cross-examination that: -

"---It is correct that I got prepared site plan Exh.P.B on the pointation of PWs Salma Bibi and Naveed which I signed on 03.09.2015. It is correct that as per site plan Exh.P.B, the occurrence took place in the Havaili of Muhammad Aslam son of Nazar Muhammad---It is correct that during my investigation, occurrence did not take place in the house/hevaili of Qaiser Abbas accused---"

The actual place of occurrence has not been duly proved. As regards the place of occurrence, Faiz Ahmad S.I./I.O. (PW-12)-the investigating officer, has stated that the place of occurrence is not the Haveli of Qaiser Abbas, and the same is the Haveli of Muhammad Aslam, son of Nazar Muhammad. Besides being highly interested, all the prosecution witnesses have also made irreconcilable contradictions on material points, rendering their evidence incredible. With this background, the presence of the alleged eye-witnesses on the spot seems doubtful. This is a very serious infirmity that destroys the credibility of the witnesses' evidence. If the evidence of these witnesses is rejected as untrustworthy, nothing survives the prosecution case, and it would not be safe to rely upon such evidence.

1. The motive set up by the prosecution in the Fard Bayyan (Ex. PP) and FIR (Ex.PA) and deposed about it by Salma Bibi (PW-7) and Naveed (PW-11) have been found by us to have remained un-proved. The prosecution case in this regard was vague and could hardly inspire confidence. Salma Bibi (PW-7) deposed during cross-examination that: -

"---I did not get record in my statement before the police that any altercation was happened in between my brother Khuram Shahzad and accused Qaiser Abbas within the area of Sarokey---"

1. Therefore, the evidence led by the prosecution in connection with motive is not sufficient for placing reliance on the testimonies of the witnesses for committing the occurrence. Motive is a double-edged weapon for the occurrence and for false implications. There are always different motives that operate in the mind of the person in making false accusation. In the circumstances, we cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.

2. We have noticed that no doubt 30-bore pistol (P-4) along with two live bullets (P-4/1-2) was allegedly recovered on the pointing of Qaiser Abbas, appellant-accused and there is no report of the Forensic Science Laboratory, Lahore, that the weapon had matched with the crime empties. As no crime was empty was recovered from the place of occurrence which could be matched with the weapon recovered. Contrary to it, the report of Forensic Science Laboratory (Ex. PS) reflects that the allegedly recovered weapon was in working condition, therefore, there is no incriminating recovery in this case available on record to connect the appellant with the commission of offence.

2025 P Cr. L J 334

[Lahore]

Before Asjad Javaid Ghural and Tariq Saleem Sheikh, JJ

M. Ihsan alias Malkoo and others---Appellants

Versus

The State and others---Respondents

Criminal Appeal No. 78896, Murder Reference No. 361 of 2019 and Criminal Revision No. 2212 of 2020, decided on 8th April, 2024.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Benefit of doubt---Common intention not established---Vicarious liability---Scope---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Record showed that that the appellant "MA" to whom admittedly neither any overt act nor any firearm injury either to the deceased or injured was attributed, was convicted and sentenced by the Trial Court for sharing 'common intention' with the principal accused---Ordinarily, every accused was individually responsible for a criminal act done by him---No one could be held responsible for an independent act or wrong committed by another---In the crime report, the complainant did not utter even a single word qua prior concert or pre-arranged plan between the appellants to kill the deceased---Even both the acclaimed eye-witnesses while appearing in the dock in the Court room did not make even slight indication that there was a plan or meeting of mind of both the appellants to commit the murder of deceased which was sine qua non for attracting the provisions of S.34, P.P.C---Both the witnesses simply stated that at the time of crime, appellant while armed with firearm was accompanying the principal accused---Mere presence of the appellant with the principal accused in the absence of any pre-arranged plan between them was not sufficient to hold him guilty of vicarious liability---Entire prosecution evidence was silent qua the relationship of the appellant with the principal accused---Neither the motive part of occurrence had any relevance with the appellant nor there was any iota of material from which it could be inferred that the appellant had any animosity with the complainant party---In the absence of any evidence that intention of principal accused to kill the deceased was in the knowledge of the appellant, he could not be held guilty of vicarious liability---Thus, the prosecution had failed to prove the charge against the appellant for sharing common intention with the principal accused, as such his conviction and sentence on that basis could not be allowed to hold the field---Appeal against the said accused "MA" was allowed, in circumstances.

Shoukat Ali v. The State PLD 2007 SC 93 and Mahbub Shah v. Emperor (AIR (32) 1945 Privy Council 118 rel.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence established---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Complainant and injured unanimously raised accusing fingers towards accused "I" for causing two fire shots at the right thigh and right knee joint of deceased and one at the upper part of right leg of injured, while they were on their way to home after attending Court proceedings---In the course of cross-examination, both the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, name of the appellant, weapon of offence, role played by him for committing murder of the deceased and causing injuries to the injured witness, and the defence could not extract any favourable material from their mouths---During evidence, it came on surface that the complainant was also accused in a case that allegedly served as motive for present occurrence---No doubt the case, which was fixed on the fateful day, was not the motive case but another case was lodged by the deceased against the appellant, however, keeping in view previous criminal litigation, it was not unusual in our society for a person to accompany his brother during Court proceedings as a matter of pre-caution---Even otherwise, on such point the defence had questioned the complainant at considerable length but he remained firm and consistent and even gave minute details of the incident in quite a natural manner, which established his presence at the venue of occurrence at the relevant time without any doubt---Injured witness sustained injuries during the occurrence, as such his presence at the venue of occurrence at the relevant time could not be questioned---Circumstances established that the prosecution had proved its case against the accused, however due to some mitigating circumstances, the sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 337-F(i) & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Non recording of statement of injured by the police due to negligence---Inconsequential---Presence of eye-witnesses at the time and place of occurrence established---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Allegedly, the statement of injured witness under S.161, Cr.P.C., was not recorded, therefore, his testimony before the Court could not be made basis to sustain conviction and sentence of the appellant---Injured witness sustained injury during the occurrence and even his name was reflecting in the calendar of witnesses---Medical Officer, who conducted his Medico-Legal Examination, ruled out any possibility of fabrication qua the injury sustained by him, therefore, no one else was more aware of the facts than the said witness and his testimony could not be excluded merely for the reasons that the Investigating Officer due to negligence or with mala fide intention did not record his statement under S.161, Cr.P.C---Circumstances established that the prosecution had proved its case against the accused, however due to some mitigating circumstances, the sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

Sajid Mehmood v. The State 2022 SCMR 1882 rel.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Both the witnesses of ocular account were closely related to the deceased inasmuch as they were real brothers of deceased yet their testimony could not be discarded merely on that score by treating them as interested witnesses---One of the witnesses sustained injury during the occurrence and the complainant had also established that he was accompanying the deceased at the relevant time, as such they were quite natural witnesses, who could conveniently describe the incident in the manner as it happened as compared to any other independent witness---No earthly reason was there for the eye-witnesses to falsely implicate the appellant in substitution of the real culprit---Even otherwise, substitution of the real culprit with an innocent one, in particular, where the eye-witnesses had lost their close kith and kin, was a rare phenomenon---Circumstances established that the prosecution had proved its case against the accused, however due to some mitigating circumstances, the sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

(e) Criminal trial---

----Related witnesses, evidence of---Reliance---Mere relationship of the eye-witnesses with the deceased is not sufficient to discard their evidence, if the same is otherwise found confidence inspiring and trustworthy.

Ghulam Murtaza v. The State 2021 SCMR 149 rel.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Non-production of witness---Inconsequential---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Allegedly, one of the witnesses namely "AH" mentioned in the crime report was given up by the prosecution, so an inference could be drawn that he was not ready to support the prosecution version---Prosecution was not bound to produce all the witnesses---If the appellant was sure that such witness was not ready to support the prosecution witnesses, he had ample opportunity rather was at liberty to examine him in his defence or even submit application before the Trial Court to summon him as Court witness but merely on such basis other overwhelming and confidence inspiring prosecution evidence could not be discarded---Circumstances established that the prosecution had proved its case against the accused, however due to some mitigating circumstances, the sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

Saeed Akhtar and others v. The State 2000 SCMR 383 rel.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Locale, number and nature of injuries, kind of weapon used for causing these injuries and the duration between injuries and death as well as death and post mortem examination, was exactly in consonance with the ocular account and as such, the medical evidence lent full support to the ocular version furnished by the prosecution---Circumstances established that the prosecution had proved its case against the accused, however due to some mitigating circumstances, the sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Motive proved---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---Motive as set-out by the prosecution was that earlier the appellant sustained firearm injury due to which his leg was amputated and the FIR of the said incident was lodged against the complainant, the deceased and his brother in law---Amputation of the leg of the appellant at the hands of the complainant party was not denied rather admitted by the appellant---During evidence, it came on surface that the deceased and the complainant had been acquitted in the said case, which added fuel to the fire---Moreso, the deceased also got lodged FIR in respect of offence under Ss.382 & 435, P.P.C against the appellant, and the injured was the eye-witness of the said occurrence, which was fixed on the fateful day, therefore, there could be no other reason for the appellant to take the life of deceased---No doubt previous enmity, being motive, is always considered as a double edged weapon but from the evidence available on record it had been established that it was the sole reason of present incident---With such backdrop, the prosecution had successfully proved motive part of the occurrence---Circumstances established that the prosecution had proved its case against the accused, however due to some mitigating circumstances, the sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 337-F(i) & 34---Qatl-i-amd, ghayr-jaifah-damiyah, common intention---Appreciation of evidence---Sentence, quantum of---Scope---Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother---In the instant case, there were some mitigating factors---Firstly, recovery of weapon of offence from the appellant remained inconsequential---Secondly, co-accused had been acquitted of the charge---No special circumstance is required to consider mitigation for converting the sentence of death into imprisonment for life rather an iota of single instance is sufficient to justify a lesser sentence---Moreover, when a case qualified the awarding of both sentences of imprisonment for life and that of death, the proper course for the Court, as a matter of caution, is to give preference to the lesser sentence---In such circumstances, sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Dilawar Hussain v. The State 2013 SCMR 1582 and Ghulam Mohy-ud-Din alias Haji Babu and others v. the State 2014 SCMR 1034 rel.

Syed Ali Muhammad Zahid Bukhari for Appellants.

Rai Bashir Ahmad and Nazir Umar of the Complainant.

Waqar Abid Bhatti, Deputy Prosecutor General for the State.

Date of hearing: 8th April, 2024.

Judgment

Asjad Javaid Ghural, J.---Through the afore-titled criminal appeal under Section 410 Cr.P.C., appellants Muhammad Ihsan alias Malkoo and Masood Ahmad alias Bilal have challenged the vires of judgment dated 18.11.2019 passed by the learned Addl. Sessions Judge, Sargodha in case FIR No.86/2018, dated 14.02.2018, in respect of offence under Sections 302, 324, 337-F(i) and 34, P.P.C. registered at Police Station, Jhal Chakkian, District Sargodha, whereby they were convicted and sentenced as under:-

i) Appellant Muhammad Ihsan alias Malkoo;

Under Section 302 P.P.C.

Death along with compensation of Rs.4,00,000/- to be paid to the legal heirs of deceased Zafar Iqbal and in default thereof to further undergo simple imprisonment for six months.

Under Section 337-F(i) P.P.C.

Daman amount of Rs.50,000/- to be paid to the injured Muhammad Khan.

ii) Appellant Masood Ahmad alias Bilal;

Under Section 302/34 P.P.C.

Imprisonment for life and to pay compensation of Rs.200,000/- to the legal heirs of deceased Zafar Iqbal as required under section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months.

Benefit of Section 382-B Cr.P.C. was extended to the convict Masood Ahmad alias Bilal.

1. Murder Reference No.361 of 2019 sent up by the trial Court for confirmation or otherwise of death sentence of appellant Muhammad Ihsan alias Malkoo and Criminal Revision No.2212/2020 preferred by complainant Hasnat Ahmad seeking enhancement of sentence of respondent No.2 namely Masood Ahmad alias Bilal will also be decided through this common judgment.

2. The prosecution story unfolded in the crime report (Ex.PF/1) registered on the statement (Ex.PF) of complainant Hasnat Ahmad (PW-8) was that on 14.02.2018, he along with his brothers Zafar Iqbal (deceased), Muhammad Khan, (PW-9) and one Azhar Hayat (given up PW) were coming back to their homes after attending court proceedings in District Courts, Sargodha. At about 11.45 a.m. when they reached at Scacor Road near Chak No.60/East Daira Jora, appellants armed with 12-bores came in front of them. Appellant Ihsan raised Lalkara that they had come to take the revenge and opened a fire shot which hit at the right knee of Zafar Iqbal. He repeated the fire which landed at the right thigh of said Zafar Iqbal. His third fire was hit at the fuel tank of motor-cycle while the forth one was landed at the right shin of injured Muhammad Khan, who fell down from the motorcycle. Accused persons left the place on motor-cycle 125 without number while brandishing their guns. They attended the injured persons and took them to the Civil Hospital, Sargodha. Injured Zafar Iqbal succumbed to the injuries on the way to the hospital.

Motive behind the occurrence was that appellant Ihsan alias Malkoo sustained injuries in an occurrence and the FIR in this regard was registered against the complainant and his deceased brother Zafar Iqbal along with one Mazhar Hayat, brother in law of deceased.

1. Khalid Hayat, SI (PW-12) prepared injury statement as well as inquest report of deceased Zafar Iqbal and escorted his dead body to the mortuary. He visited the place of occurrence on the same day, took all necessary steps of initial investigation and also recorded the statements of the witnesses under Section 161 Cr.P.C.

Muhammad Yar, SI (PW-11), produced the appellants before the Area Magistrate and obtained their physical remand. During investigation, appellant Ihsan alias Malkoo led to the recovery of motor-cycle No.SGL-1426 Yamah 100 CC (P-1) and 12-bore repeater (P-2), which were taken into possession through recovery memos (Ex.PG and Ex.PH), respectively. Appellant Masood Ahmad, led to the recovery of 12-bore single barrel (P-3), which was taken into possession through recovery memo. (Ex.PJ).

1. Dr. Muhammad Sohail (PW-7) held autopsy on the dead body of deceased Zafar Iqbal Ditta on 14.02.2018 and observed three injuries on lower part of right thigh, front right knee joint with inverted margins and multiple firearm wound of exit, seven in number on inner side of right knee joint, lower part of right thigh, upper part of right left, underlying bone was fractured with averted margins. According to his opinion injury Nos.1 and 2 damaged major blood vessels leading of hemorrhagic shock, cardiopulmonary arrest and death. Probable duration between injuries and death was 25-30 minutes, whereas between death and post mortem examination, it was about four hours.

On the same day, he also examined injured Muhammad Khan and observed one fire arm grazed wound 2.5 x 1 cm on inner, upper part of right leg skin deep. Injury was declared as Jurh Damiyah with no possibility of fabrication.

1. At the commencement of trial, the trial Court framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.

2. The prosecution examined 13-witnesses besides the reports of Punjab Forensic Science Agency Ex.PZ and Ex.PAA. The appellants, in their statements recorded under Section 342 Cr.P.C., had denied and controverted all the allegations of facts levelled against them. They neither opted to make statements under Section 340(2) Cr.P.C. nor produced any evidence in their defence.

3. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellants, as stated above, vide impugned judgment dated 18.11.2019. Hence, this criminal appeal, connected Murder Reference and as well as criminal revision.

4. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State assisted by learned counsels for the complainant and perused the record with their able assistance.

5. First of all, we would like to take up the case of appellant Masood Ahmad alias Bilal to whom admittedly neither any overt act nor any fire arm injury either to the deceased or injured was attributed and he was convicted and sentenced by the Trial Court for sharing 'common intention' with the principal accused. Ordinarily, every accused is individually responsible for a criminal act done by him. No one can be held responsible for an independent act or wrong committed by another. However, Section 34 P.P.C. makes an exception to this principle, which for ease and ready reference is reproduced as under:-

"34. Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone."

The main object for enactment of the aforesaid provision is to meet a case in which it is difficult to distinguish between act of each individual being members of a party who act in furtherance of common intention of all or to prove exactly what part was played by each of them. If A,B and C make a plan to kill D and in the execution of the crime, A buys a poison, B mixes it in food and C gives it to D, as a result of which D dies, it would be unjust to hold only C liable for murder. To deal with such cases, the above provision of vicarious liability was introduced. In case reported as "Shoukat Ali v. The State" (PLD 2007 SC 93), the Apex Court has observed that:-

"Common intention' within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most case it has to be inferred from his act or conduct or other relevant circumstances of the case. Same or similar intention must not. be confused with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if over looked, will result in miscarriage of justice. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. Common intention does not mean similar intention of several persons. To constitute common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them. The common intention ought to be determined from such known facts and circumstances which existed before the commencement of the criminal act as the criminal act itself is committed in furtherance of that common intention.

It was further laid down in the said judgment that;

Mahmood, J., in Dharma Rai's case said "this section was the subject of consideration impliedly in the case of Queen v. Gorachand Gopee. At p.456, Sir Barnes Peacock clearly laid down the rule of law that mere presence of persons at the scene of an offence is not, ipso facto, sufficient to render them liable to any rule such as S.34 enunciates, and that the furtherance of common design' was an essential condition before such a rule applied to the case of an individual person. It was probably in consequence of this expression of view from such a high authority that the Legislature by S.1 of Act XXVII of 1870, repealed the original S.34; and in substituting another section therefore, inserted the important word is 'in furtherance of the common intention of all,' as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if it were committed by him alone. This change in the law is very significant, and it indicates to my mind that the original section having been found to be somewhat imperfectly worded, these additional words were introduced to draw a clear distinction that unpremeditated acts done by a particular individual, and which go beyond the object and intention of the original offence, should not implicate persons who take no part in that particular act. We have the opinion of an American jurist on the point, whom Mr. Mayne, in his Commentary on the Penal Code, quotes (Biship, S.439) where that learned author, lying down the rule, goes on to say:--But if the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because when it was done he was intending to be a partaker with the doer in a different wrong.' This seems to me to be the right interpretation of the words `in furtherance of the common intention of all, as they occur in S.34 of the Penal Code" (in re Thipperudrappa (Vol. 55 1954 Cr.LJ 481). "The Supreme Court has held that it is well-established that a common intention pre-supposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either' to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or. the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypotheses." (Poandurang v. State of Hyderabad (1955 Cr.LJ 572)".

After survey of almost entire law qua the enactment of provisions of Section 34 P.P.C., the Apex Court lastly laid down following pre-requisites for attracting the provisions of aforesaid Section:-

"(a) It must be proved that criminal act was done by various persons

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

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

(d) Existence of strong circumstances (for which no yardstick can be fixed and each case will have to be discussed on its own merits) to show common intention.

(e) The real and substantial distinction in between common intention' andsimilar intention' be kept in view."

1. On the touchstone of above, guiding principles, now we have to see whether the case of the appellant falls within the ambit of vicarious liability or not. In the crime report, (Ex.PF) the complainant did not utter even a single word qua prior concert or pre-arranged plan to kill the deceased between the appellants. Even both the acclaimed eye-witnesses while appearing in the dock in the court room did not make even a slight indication that there was a plan or meeting of mind of both the appellants to commit the murder of deceased which was sina qua non for attracting the provisions of Section 34 P.P.C. Both the witnesses simply stated that at the time of crime, appellant while armed with fire arm was accompanying the principle accused. Mere presence of the appellant with the principal accused in the absence of any pre-arranged plan between them is not sufficient to hold him guilty of vicarious liability. In case Mahbub Shah v. Emperor (AIR (32) 1945 Privy Council 118), Allah Dad and few others were trying to collect reeds from the bank of the Indus River. They were warned by Mahboob Shah against collecting reed from land belonging to him. Ignoring the warning the deceased collected reeds but was stopped by Qasim Shah, nephew of Mahboob Shah while he was placing them on the boat. Qasim Shah was hit by the victim by a bamboo pole. On hearing Qasim Shah's cries for help, Mahboob Shah and his son Wali Shah came while armed with their guns. Wali Shah fired at the victim who died instantly and Mahboob Shah fired another person causing him some injuries. This Court ( Lahore High Court ) sentenced Mahboob Shah with the murder of the victim under Section 302 Penal Code read with Section 34 but on appeal Privy Council set-aside the conviction of Mahboob Shah while observing that common intention required pre-arranged plan and it has to be proved that the criminal act was done in concert pursuant to the pre-arranged plan. Here the two accused might be having the same or similar intention but not the common intention and since the firing of Mahboob Shah did not kill anyone, he was not held liable for murder by application of Section 34. Here in the instant case, entire prosecution evidence is silent qua the relationship of the appellant with the principal accused. Neither the motive part of occurrence has any relevance with the appellant nor there is any iota of material from which it could be inferred that the appellant has any animosity with the complainant party. Learned Trial Court while holding the appellant guilty of vicarious liability has observed that "Admittedly, Ihsan alias Malku accused was amputated with his one leg much before the instant occurrence. He was in absolute need of a companion to accompany him to court and back depart to his village. Allegedly the accused was taken by Masood accused on a motorcycle while approaching to crime venue. The alleged role played for Masood accused was found essential and contributory in execution of design of occurrence and the circumstances of his presence along with principle offender admittedly amputated with one leg itself establish the fact of his provided assistance and sharing of common intention. It is concluded that the accused was not merely present at crime scene on relevant time but he played pivotal role in instant occurrence." The above observations of the learned Trial Court are entirely based on surmises and conjectures. The prosecution has not placed on record any material from which it could be inferred that the principal accused without the help of someone else was unable to ride the motor-cycle. No doubt the leg of the principal accused was amputated but the complainant (PW-8) during cross-examination denied the suggestion that due to amputation of leg principal accused was unable to walk and work rather voluntarily stated that the principal accused get an artificial leg and was capable to deal in routine work. Moreso, in the crime report, it was the case of the prosecution that the accused persons came on the crime scene at Honda 125 without number but the motor-cycle which was shown to be recovered at the instance of the principal accused bears registration No.SGL-1426 Yamah 100 CC, as such assumption of the Trial Court that the appellant brought the principal accused on the crime scene at motor-cycle is not made out from the record. Even otherwise, if for the sake of arguments it is assumed that the principal accused was unable to do any routine work due to amputation of his leg and the appellant bring him back from the Court, even then in the absence of any evidence that intention of principal accused to kill the deceased was in the knowledge of the appellant, he cannot be held guilty of vicarious liability. In view of what has been discussed above, we are of the considered view that the prosecution has miserably failed to prove the charge against the appellant for sharing common intention with the principal accused, as such his conviction and sentence on that basis cannot be allowed to hold the field.

2. Now coming to the case of principal accused/appellant Ihsan alias Malkoo. Hasnat Ahmad, (PW-8)/complainant and Muhammad Khan, (PW-9) /injured while appearing in the dock in the court room unanimously raised accusing fingers towards him for causing two fire shots at the right thigh and right knee joint of deceased Zafar Iqbal and one at the upper part of right leg of injured (PW-9), while they were on their way to home after attending court proceedings. In the course of cross-examination, both the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, name of the appellant, weapon of offence, role played by him for committing murder of the deceased and causing injuries to the injured witness and the defence could not extract any favourable material from their mouths.

Learned defence counsel laid much emphasis that the complainant was neither witness in the criminal case, which was fixed on the fateful day nor he sustained even a scratch on his body and as such his presence at the venue of occurrence was highly doubtful. We are not in agreement with the submission of learned defence counsel. During evidence, it came on surface that the complainant was also accused in a motive case of occurrence. No doubt the case, which was fixed on the fateful day was not the motive case but another case got lodged by the deceased against the appellant, however, keeping in view the previous criminal litigation, it is not unusual in our society for a person to accompany his brother in the court proceedings as a matter of pre-caution. Even otherwise, on this point the defence has questioned the complainant at a considerable length but he remained firm and consistent and even gave minute details of the incident in a quite natural manner, which established his presence at the venue of occurrence at the relevant time without any doubt.

1. Muhammad Khan (PW-9), sustained injuries during the occurrence, as such his presence at the venue of occurrence at the relevant time cannot be questioned, however, learned defence counsel raised the objection that the statement of said witness under section 161, Cr.P.C. was not recorded, therefore, his testimony before the Court cannot be made basis to sustain conviction and sentence of the appellant. We are unable to agree with the submission of the learned counsel as a proper procedure for recording of prosecution evidence, after framing of charge has been laid down in Section 265-F of Cr.P.C. Nowhere in the said section a prohibition has been contained that the Court is bound only to record the testimony of a person, whose statement under section 161, Cr.P.C. was recorded by the police. Sub-Section (2) of said section reads as under:-

"(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it."

Here in the instant case, said witness sustained injury during the occurrence and even his name was reflecting in the calendar of witnesses. The Medical Officer (PW-3), who conducted his medico legal examination ruled out any possibility of fabrication qua the injury sustained by him, therefore, none else is more aware of the facts than the said witness and his testimony cannot be excluded merely for the reasons that the Investigating Officer due to negligence or with mala fide intention did not record his statement under section 161, Cr.P.C. Reliance is places on case reported as "Sajid Mehmood v. The State" (2022 SCMR 1882), wherein it has been laid down as under:-

" The very purpose of Section 265-F is to ensure the concept of a fair trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning the evidence. There is nowhere mentioned in this Section that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been recorded. Under this provision of law i.e. section 265-F the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses. On the other hand, section 540, Cr.P.C. empowers the Trial Court to summon a material witness even if his name did not appear in the column of witnesses provided his evidence is deemed essential for the just and proper decision of the case. In the present case, although the statement of Zameer Hussain (PW-11) under section 161, Cr.P.C. could not be recorded by the Police yet the fact remains that he was named as an eye-witness in the very FIR and was fully acquainted with the facts and the circumstances of the case."

1. Though both the witnesses of ocular account were closely related to the deceased inasmuch as the real brothers of deceased yet their testimony cannot be discarded merely on this score by treating them interested witnesses. One of the witnesses sustained injury during the occurrence and as has been discussed supra the complainant has also established that he was accompanying the deceased at the relevant time, as such they were quite natural witnesses, who can conveniently describe the incident in the manner as it happened as compared to any other independent witness. There was no earthly reason for the eye-witnesses to falsely implicate the appellant in substitution of the real culprit. Even otherwise, substitution of the real culprit with an innocent one, in particular, where the eye-witnesses have lost their close kith and kin, is a rare phenomenon. It is well established principle in criminal administration of justice that mere relationship of the eye-witnesses with the deceased is not sufficient to discard their evidence, if the same was otherwise found confidence inspiring and trustworthy. Reliance is placed on case reported as "Ghulam Murtaza v. The State" (2021 SCMR 149).

2. Next objection of the defence was that one of the witnesses namely Azhar Hayat mentioned in the crime report was given up by the prosecution, so the inference could be drawn that he was not ready to support the prosecution version. This submission is repelled. It is well settled by now that the prosecution is not bound to produce all the witnesses. If the appellant was sure that this witness was not ready to support the prosecution witnesses, he had ample opportunity rather at liberty to examine him in his defence or even submit application before the trial Court to summon him as Court Witness but merely on that basis other overwhelming and confidence inspiring prosecution evidence cannot be discarded. Reliance is placed on case reported as "Saeed Akhtar and others v. The State" (2000 SCMR 383).

3. Dr. Muhammad Sohail (PW-7) held autopsy on the dead body of deceased Zafar Iqbal on 14.02.2018 and observed three injuries on lower part of right thigh, front right knee joint with inverted margins and multiple firearm wound of exit, seven in number on inner side of right knee joint, lower part of right thigh, upper part of right left, underlying bone was fractured with averted margins. According to his opinion injury Nos.1 and 2 damaged major blood vessels leading of hemorrhagic shock, cardiopulmonary arrest and death. Probable duration between injuries and death was 25-30 minutes, whereas between death and post mortem examination, it was about four hours.

The locale, number and nature of injuries, kind of weapon used for causing these injuries and the duration between injuries and death as well as death and post mortem examination, was exactly in consonance with the ocular account and as such, the medical evidence lends full support to the ocular version furnished by the prosecution.

The above said Medical Officer also examined injured Muhammad Khan and observed one fire arm grazed wound 2.5 x 1 cm on inner, upper part of right leg skin deep, which was also in consonance with the ocular account of the injured. The Medical Officer has ruled out the possibility of fabrication of said injury and the defence also did not make any effort to get constitute a District Standing Medical Board for re-examination of the injured, in the absence whereof, we are unanimous in holding that the medical evidence finds full support for the prosecution story.

1. Motive as set-out by the prosecution was that earlier the appellant sustained fire arm injury due to which his leg was amputated and the FIR of the said incident was lodged against the complainant, deceased Zafar Iqbal and his brother in law namely Mazhar Hayat. Amputation of the leg of the appellant at the hands of the complainant party was not denied rather admitted by the appellant. During evidence, it came on surface that the deceased and the complainant have been acquitted in the said case, which added fuel to the fire. Moreso, the deceased also got lodged an FIR No.139/14 dated 15.04.2024, in respect of offence under sections 382 and 435 P.P.C., P.S. Jhal Chakian, District Sargodha against the appellant and injured Muhammad Khan (PW-9) was the eye-witness of the said occurrence, which was fixed on the fateful day, therefore, there can be no other reason for the appellant to take the life of deceased. No doubt previous enmity, being motive, is always considered as a double edged weapon but from the evidence available on record it has been established that it was the sole reason of this unfortunate incident. With this backdrop, we are persuaded to hold that the prosecution has successfully proved motive part of the occurrence.

2. During investigation, appellant led the police party to the recovery of 12-bore repeater (P-2), which was sent to the office of Punjab Forensic Agency, Lahore for comparison with the crime empties secured from the spot and the report of said office (Ex.PAA) has been received with negative result rendering the recovery of weapon of offence from the appellant inconsequential.

3. From this discussion, we have entertained no manner of doubt in our mind that the prosecution has been able to prove the charge of homicidal death of the deceased at the hands of the appellant Muhammad Ihsan alias Malkoo through cogent, reliable and confidence inspiring evidence. The appellant was named in the crime report with the specific role of causing two successive fire arm injuries to the deceased resulting into his death. Both the witnesses of ocular account furnished plausible explanation of their presence at the place of occurrence at the relevant time. The ocular account is firm and consistent inter-se supported with the medical evidence. This overwhelming evidence constrained us to concur with the conclusion arrived at by the trial Court qua the conviction of the appellant under Section 302(b) P.P.C..

4. Now coming to the quantum of sentence. It is well settled by now that question of quantum of sentence, requires utmost caution and thoughtfulness on the part of the Court. In this regard, reliance is placed on case reported as Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein it has been laid as under:-

"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."

Here in the instant case, we have taken note of some mitigating factors. Firstly, recovery of weapon of offence from the appellant remained inconsequential. Secondly, co-accused Masood Ahmad alias Bilal has been acquitted of the charge. It is well settled that no special circumstance is required to consider mitigation for converting the sentence of death into imprisonment for life rather an iota of single instance is sufficient to justify lesser sentence. Reliance is placed on case reported as "Dilawar Hussain v. The State (2013 SCMR 1582)" wherein it has been laid down as under:-

"It has neither been mandate of law nor the dictates of this Court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence."

It is also settled principle of law that when a case qualifies the awarding of both sentences of imprisonment for life and that of the death, the proper course for the Courts, as a matter of caution, is to give preference to the lesser sentence. Reference may be made to case titled "Ghulam Mohy-Ud-Din alias Haji Babu and others v. The State" (2014 SCMR 1034) wherein it has been observed at page 1044 as:-

"In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."

2025 P Cr. L J 383

[Lahore]

Before Aalia Neelum C.J and Asjad Javaid Ghural, J

Abid Ali and others---Appellants

Versus

The State and others---Respondents

Criminal Appeals Nos. 79031-J of 2010, 2384 of 2020, Criminal Revision No. 2385 of 2020 and Murder Reference No. 29 of 2020, decided on 20th November, 2024.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of seven hours in lodging the FIR---Consequential---Accused were charged for committing murder of two sons of complainant by firing---As per the prosecution version, in the instant case, the incident took place on 10.02.2018 at 10:00 a.m. wherein two sons of the complainant lost their lives---Inter-se distance between the place of occurrence and the police station was 10 kilometers---Complainant reported the incident to the police on the same day at 05:00 p.m. through the written application, based on which Police Official chalked out the FIR---However, there was an inordinate delay of 07 hours in reporting the matter---Prosecution failed to prove what the complainant and his witnesses did for seven hours, which put a dent in the prosecution's story---Prosecution failed to explain the delay in reporting the incident and what the complainant did for 07 hours---Such 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, including the complainant's presence at the scene of the occurrence---Appeal was allowed and appellants were acquitted of the charge.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Medical evidence and oral account---Contradictions---Accused were charged for committing murder of two sons of complainant by firing---According to the deposition of the complainant, he took his injured son to the police station after the incident at about 10:30 or 11:00, and he remained in the police station from 11:00 to 12:00 noon---After that, complainant took his injured son to the RHC Hospital---At the RHC, the Medical Officer referred injured to the DHQ Hospital, due to his critical condition---Complainant reached the emergency of DHQ hospital between 03:30 pm and 04:00 p.m.---Medical Officer checked injured in the emergency of the hospital and declared that son of complainant had died---Medical Officer, who conducted the postmortem examination on the dead body of the deceased deposed that the duration between injury and death was within 30 minutes---From the testimony of Police witness, it was revealed that the complainant remained in the police station for hours---As per the version of complainant, keeping in view the critical condition of the injured, the Medical Officer of RHC referred the injured to DHQ hospital and the complainant reached DHQ hospital at Zohar time---Complainant further deposed that they reached DHQ hospital after Zohar time---Zohar timing on 10.02.2018 was 11.52 am whereas Asr timing was 04.06 pm---Postmortem report of deceased had not been challenged by the prosecution, wherein it was mentioned that the duration between injury and death was half an hour---Admittedly, the prosecution witnesses failed to prove when and where deceased took his last breath---What happened between 10:00 a.m. and 05:00 p.m. on 10.02.2018 was shrouded in mystery---If the complainant, alongwith prosecution witnesses and deceased (then injured), reached DHQ Hospital at Zohar time and as per the opinion of the Medical Officer the duration between the injury and death was 30 minutes, then how the Medical Officer could refer the injured from RHC to DHQ hospital--- Complainant, deposed that he had no knowledge of any prescription/entry in the emergency of DHQ hospital, and about any issuance of the death certificate of his deceased son---Thus, medical evidence contradicted the ocular account---Appeal was allowed and appellants were acquitted of the charge.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Non-submission of material documentary evidence---Effect---Accused were charged for committing murder of two sons of complainant by firing---Prosecution did not produce refer slip of RHC Hospital or a death certificate issued by DHQ Hospital, during evidence---Non-submission of said documents, i.e., the refer slip and the death certificate, created doubt in the prosecution's case, as a man may lie, but documents cannot---Appeal was allowed and appellants were acquitted of the charge.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Call Data Record (CDR), production of---Inconsequential----Delay in sending body from the spot to the mortuary---Accused were charged for committing murder of two sons of complainant by firing---Prosecution put much emphasis on the evidence of the complainant, and an eye-witness, on the point that the deceased "S" made a call on 15 Police emergency before his death at 10:02 a.m. on 10.02.2018---Complainant made the call on 15 Police emergency at 10:18 a.m. on 10.02.2018 and referred to a copy of call data to prove that incident against the appellants was reported by the deceased in his life time---However, as per prosecution case, on receiving firearm injury "S" succumbed to the injuries at the spot---Moreover, it was not the case of the prosecution that any altercation occurred between the deceased and the accused before the incident---Caller did not give the accused's name in the call on 15 police emergency---Investigating Officer said that the dead body of the deceased "S" laid at the place of occurrence till 05:00 p.m., and after that, the dead body was sent to the mortuary---Admittedly the complainant, eye-witness, Head Constable, and the Investigating Officer deposed that the Investigating Officer arrived at the place of occurrence after 05:00 p.m. and after that, the dead body of deceased "S" was sent to the mortuary after about seven hours from the time of occurrence---Substantial period had lapsed between the incident and sending the dead body from the spot to the mortuary---As deposed by the Medical Officer, "S" died at 10:00 a.m., thus the prosecution failed to prove who made the call on 15 police emergency, and if the dead body of "Y" was received in the dead house at 11:15 a.m., then the entire prosecution story become doubtful---Thus, the presence of the complainant and the eye-witness at the time of occurrence became doubtful---Appeal was allowed and appellants were acquitted of the charge.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of two sons of complainant by firing---As per the contents of the application for the registration of case and FIR, there was a dispute over water between the parties---However, while filing the private complaint on 30.06.2018, after 04-months and 20 days, the motive was improved, and the complainant mentioned that there was a dispute over the tube well between the complainant and the accused party---Complainant admitted during cross-examination that he had not pointed out the place where the motor was installed and whether the land was being irrigated by the tube well---Whereas the eye-witness deposed during cross-examination that as there was no previous enmity between the parties therefore he did not record any previous enmity between the parties in his statement before police---Appellants had admitted that their mother had filed a civil suit regarding the same tube well---Complainant stated that the connection of the tube-well was installed 20 years ago, and the connection was in the name of his uncle---Complainant had mentioned in the written statement that he and his uncle both had been jointly using the tube well in equal shares since about 1995---Later, in early 2018, said uncle of complainant received the expenses of his 50 percent share from complainant and assigned its ownership entirely to complainant---Complainant had not submitted any written agreement about the purchase of the remaining 50 percent share---Complainant only submitted an affidavit of his uncle, according to which his son died a long time ago, and that his sons did not have any concern with the tube well---Such affidavit was written on 10 May 2018, and based on the affidavit, the civil Court declared the suit infructuous, vide order dated 07.06.2018, while uncle of complainant did not appear and verify the contents of the affidavit---Deposition of complainant revealed that the land of father of appellants and his land were irrigated from the tube well before the occurrence---Complainant deposed that the accused were the paternal and maternal grandchildren of his uncle---Both the parties admitted that uncle's son and daughter's children were accused in the present case---In such circumstances, appearance of complainant's uncle before the Court was necessary to verify the affidavit's contents---Origin of the incident was shrouded in mystery as the complainant admitted that the tube well irrigated both lands before the occurrence---So irrigating land with tube well water was not a motive for the commission of the crime---Appeal was allowed and appellants were acquitted of the charge.

(f) Criminal trial---

----Interested witnesses, evidence of---Term interested postulated that the witness must have some direct interest in having the accused convicted somehow or other due to some animus or other reason---An interested witness is interested in securing the conviction of a person out of vengeance or enmity.

(g) Criminal trial---

----Enmity---Scope---Enmity is a double-edged weapon that cuts both ways---If, on the one hand, it provides a motive for the accused to commit the occurrence in question, on the other hand, it equally provides an opportunity for the first informant to implicate his enemy.

(h) Criminal trial---

----Motive---Scope---Motive is a double-edged weapon for the occurrence and also for false implication---Different motives always operate in the mind of the person making the false accusation---Based on motive of accused to commit the crime, cannot by itself lead to a judgment of conviction.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Site plan prepared on pointation of complainant and witnesses---Scope---Accused were charged for committing murder of two sons of complainant by firing---In the scaled site plan, the presence of eye-witnesses was shown at point "E," which was on the northern side of the land of the complainant---Position of the witnesses had been changed in the scaled site plan from the southern side to the northern side---On the perusal of the inquest report, in column No. 24, a map of the place of occurrence had been drawn, which reflected the same position shown in the un-scaled site plan---Complainant and the eye-witness changed their stance and presence of the witnesses on the land, which was ploughed before the occurrence by the witnesses to strengthen their case---Case of the prosecution was that due to a dispute of water on irrigation, the incident took place, however, only the tube well was shown in the passage and the agricultural land belonging to the accused side had not been shown in the un-scaled and scaled site plans---There was admission on the part of draftsman, that on the pointing of the complainant and witnesses and at the direction of the Investigating Officer, he prepared scaled site plans---From the prosecution evidence, it was revealed that the scaled site plan and un-scaled site plan were prepared on the pointing of the prosecution witnessesand that fact also got reaffirmed by the complainant while cross-examining draftsman---In both site plans, a significant change was made about the land the witnesses ploughed---Substantial change made in the site plan was with purpose---If the presence of the witnesses was considered on the land of the complainant on the southern side, then it was not possible for the witnesses to witness the occurrence with a specific role, which took place on the path, which led from south to north, as in the un-scaled site plan, point "K" was shown at the south eastern side, away from the place of occurrence, where land was ploughed---Un-scaled site plan also did not demonstrate the complainant's presence---If witnesses were present at considerable distance from the place where deceased received injuries by the hands of assailants and grown up crop was intervening the places then witnesses' deposition with specification of roles of assailants qua inflicting firearm injuries was not believable---Though in his complaint complainant annexed site plan with changed detail of place of occurrence, yet did not negate correctness of site plan annexed with state case as well as Naqsha Khasra detailed in Column No.24 of the inquest report during trial of the case, hence, changed site plan was of no help to the case of complainant---As per the scaled site plan and the statement of draftsman, there was a wheat crop adjacent to the main passage on the northeastern side---If witnesses were present on the eastern side, then, in the presence of wheat crop, it was not possible to see the incident with specification---Appeal was allowed and appellants were acquitted of the charge.

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

----Ss. 302(b), 201, 109, 148 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and crime empties---Safe custody of recovered weapons not established---Accused were charged for committing murder of two sons of complainant by firing---As per the prosecution case, on 20.03.2018, the appellants, were arrested---Upon the disclosure of one of the appellants, on 30.03.2018, rifle 223-bore along with three live bullets were recovered by the Investigating Officer who secured the same into possession through a recovery memo.---On 04.04.2018, other appellant got recovered a 7-mm rifle (P-11), which the Investigating Officer secured through recovery memo.---Both the recovery memos. were attested by witnesses---As per prosecution evidence, the Investigating Officer handed the recovered weapons to Moharrar on 30.03.2018---Whereas Moharrar deposed that on 04.04.2018, Investigating Officer handed over to him two parcels of rifle---On 12.04.2018, Moharrar handed over the said parcels to Police Official/ASI for depositing the same in the office of Forensic Science Laboratory---As per the Firearms and Toolmarks Examination Report, the weapon recovered from one of the appellants, matched the crime empties concerned---Prosecution was bound to prove safe custody of the sealed parcels of the recovered rifle 223-bore along with three live bullets from the appellant on 30.03.2018---After scrutinizing the material on the record, it could be concluded that the prosecution had not established safe custody of the recovered rifle 223-bore, along with three live bullets---Moreover, there were contradictions in the case of the prosecution as to the safe custody of the parcels of the recovered rifle 223-bore, along with three live bullets---Moharrar had deposed that the rifle 223-bore, along with three live bullets, were on 30.03.2018 rather than on 04.04.2018---In the facts and circumstances, the possibility of tampering the recovered rifle 223-bore could not be ruled out---Appeal was allowed and appellants were acquitted of the charge.

(k) Criminal trial---

----Standard of proof---Suspicion---Scope---Prosecution must prove its case beyond a reasonable doubt, and suspicion cannot replace proof.

(l) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt is to be extended in favor of the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(m) Appeal against acquittal---

----Double presumption of innocence---Scope---When a Court of competent jurisdiction acquits the accused, double presumption of innocence is attached to his case.

Muhammad Mansha Kausar v. Muhammad Ashgar and others 2003 SCMR 477 rel.

Usman Naseem, Rai Bashir Ahmad, Khawar Mahboob Malik, Bilal Farooq and Attiq-ur-Rehman for Appellants.

Munir Ahmad Sial, Addl. Prosecutor General for the State.

Rana Abdul Sattar Khan, Muhammad Ahsan Bhoon and Syed Ali Zuhair Kirmani for the Complainant.

Date of hearing: 20th November, 2024.

Judgment

Aalia Neelum, C.J.---(1) Abid Ali, (2) Tariq Ali, sons of Pervaiz, and (3) Muhammad Arshad son of Bashir Ahmad, all Dogar by Caste, residents of Saidpur Tehsil and District Kasur, have assailed their convictions and sentences recorded by the learned Additional Sessions Judge, (MCTC), Kasur vide judgment dated 07.12.2019, in a private complaint filed under sections 302, 201, 109, 148, 149 P.P.C. P.S. Khudian, District Kasur titled "Haji Akbar Ali v. Abid Ali and others" in a State case FIR No.63/2018, dated 10.02.2018, offences under Sections 302, 148, 149 P.P.C., registered at the Police Station, Khudian, District Kasur, whereby the learned trial court convicted the appellant No.1-Abid Ali under Sections 302 (b)/34 P.P.C. as Tazir and sentenced to death with the direction to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C, and in case of default in payment thereof, he would further undergo 06-months S.I. Whereas the appellants Nos.2 and 3, Tariq Ali and Muhammad Arshad were convicted under Sections 302(b)/34 P.P.C. as Tazir and each of them was sentenced to undergo rigorous imprisonment for life, with the direction to pay Rs.3,00,000/- each as compensation to the legal heirs of deceased and in case of default in payment thereof, each of them would further undergo 06 months S.I. The benefit of Section 382-B of Cr.P.C., was also extended in favor of the appellants.

1. Feeling aggrieved by the judgment of the learned trial court, the appellants-Abid Ali, Tariq Ali, and Muhammad Arshad, have assailed their conviction and sentence by filing an appeal bearing Crl. Appeal No.79031-J of 2019. The learned trial court also referred M.R. No.29 of 2020 (The State v. Abid Ali) to confirm the death sentence awarded to the appellant-Abid Ali, whereas the complainant filed Crl. Appeal No.2384 of 2020 against the acquittal of respondents Nos.2 and 3, namely Muhammad Farooq and Muhammad Asif (On the request of learned counsel for the complainant, names of respondents Nos.4 to 6 have been deleted). The complainant, dissatisfied with the impugned judgment dated 07.12.2019, also preferred a Criminal Revision No.2385 of 2020 to enhance the sentence of respondents Nos.2 and 3, namely, Tariq Ali and Muhammad Arshad. All the matters arising from the same judgment of the trial court are being disposed of through a single judgment.

2. Briefly, the prosecution story as alleged in the private complaint (Ex. PF) filed by Haji Akbar Ali (PW-1)-the complainant is that on 10.02.2018, at about 10:00 a.m, the complainant (PW-1) along with his sons namely, Muhammad Yaseen (since dead) and Muhammad Sajid (since dead) went to tube-well for irrigation of land. After returning from the tube well to their cattle shed, when they reached the graveyard on the eastern side of the way, the accused persons, while quipped with their respective weapons, were ambushed having common objects. On seeing the complainant party, the accused, Muhammad Asif, raised a lalkara that no one should have been spared, after which the accused, Abid, with his rifle, made a shot, which hit the right side of the chest of Muhammad Yaseen (since dead), who fell. After that, the accused, Tariq Ali, with his rifle, made a shot at the person of Sajid (since dead), which landed on the left side of his chest. After that, the accused, Arshad, with his rifle, went near Sajid (since dead) and made a shot, which hit his left arm. After the alleged occurrence, the accused persons fled away from the place of occurrence, whereas Sajid (since dead) succumbed to the injuries at the spot. Muhammad Yaseen son of Zafer Ali and Muhammad Sadiq son of Ahmad Din were plowing the fields along with the complainant and his sons, i.e., Muhammad Sajid, whereas Muhammad Ilyas came there to lend agricultural tools. They witnessed the occurrence. Thereafter, the complainant (PW-1), while leaving Yaseen and Sadiq, prosecution witnesses at the spot, shifted his injured son, namely, Muhammad Yasin, in injured condition to the DHQ hospital, where the doctor verified his death. The motive behind the occurrence was that the accused persons had a dispute over the possession of the tube well.

3. After the occurrence, the complainant (PW-1) went to the Police Station, Khudian, and moved an application for registration of case (Ex. PA), upon which formal FIR (Ex.PA/1) was chalked out by Sher Muhammad, ASI (CW-7). After registration of the case, the investigation of this case was first entrusted to Tahir Sohail, Ex. S.I (CW-8). After that, the investigation of this case was entrusted to Qurban Shabbir, (Retired) S.I (CW-5), who found the accused persons/appellants guilty, prepared a report under Section 173, Cr.P.C. while placing the names of the accused in column No.3 of the Challan and sent the same to the court of competent jurisdiction. The learned trial court formally charge-sheeted the appellants on 11.09.2018, to which they pleaded not guilty and claimed trial. The complainant, in support of his version, produced as many as three (03) witnesses, whereas the rest of the witnesses were summoned as court witnesses, i.e., CW.1 to CW.10.

4. After the closure of prosecution evidence, the appellants were also examined in terms of Section 342 Cr.P.C., wherein they refused to appear as their own witnesses in terms of Section 340(2) Cr.P.C. However, they opted to produce defence evidence. In response to a particular question of why this case was against them and why the PWs deposed against them, the appellants, Nos.1 and 2, Abid Ali and Tariq Ali, made the following deposition: -

"The factum has been came on record during cross-examination that SHO had gone to the place of occurrence in response to the emergency call on 10.02.2018 at 10:02 a.m and on at 10:18 a.m on 15-rescue which was made by a person who impersonated himself as Sardar Sajid and Haji Akbar whereas complainant has vehemently denied that he has not made any, despite the fact that Afzal Moharrar CW-2 has stated that SHO had visited the place of occurrence along with Incharge of Homicide cell reached at the place of occurrence in response of call of rescue 15. It is stated that on 10.02.2018 at about 11:00 a.m, complainant Akbar Ali along with 2-3 persons came along with Yaseen deceased in the police station and they remained present for many hours and issued the docket for injuries. The above said facts were not brought on surface by the I.O in league with the complainant and the complainant was adamant to deny these hard facts and the FIR was not got registered by the complainant and after 07/08 hours a fabricated and false version was advanced on the legal advise to implicate our family. Actually, the real man Khalil son of Arif, son in law of Akbar complainant, who had the venom and grudge because he wants to wreak the vengeance against me, my brother Abid and my relative Arshad etc due to the reason, Arshad was married with sister of Khalil surreptitiously. When this marriage came into the knowledge of Khalil, he murdered her sister and Yaseen deceased informed Arshad that his wife has been murdered by Khalil etc in the house of Yaseen PW-2 in Tehsil Pattoki."

While replying to a particular question of why this case was against him and why the PWs deposed against him, the appellant, No.3, Muhammad Arshad, made the following deposition: -

"The case is totally false. In fact I have contracted marriage with Aqsa Bibi daughter of Arif and sister of Khalil Ahmad son in law of complainant Haji Akbar at the time of Nikah, Tariq my co-accused was the witness in the said Nikah and the case registered by me for the murder of my wife Aqsa Bibi, I arrayed as accused. Haji Baqar son of Khan Bahadur real brother of Muhammad Nawaz PW-3, along with Arif Father, Umar, Khalil sons of Arif son of Jalal Din who are the father and brothers of Aqsa Bibi. Haji Muhammad the younger brother of Muhammad Yasin PW-2 was also inimical towards as the fictitious Nikah-Nama was prepared with Aqsa Bibi my wife without taking divorce from me and I filed petition under section 22-A, 22-B Cr.P.C against Haji Muhammad and Zulfiqar Ali real brothers of Muhammad Yasin PW-2. We have cordial relation with Sajid and Yasin deceased. I and my brother can not think about the murder of the said persons who were closely related to us. In fact Khalil Ahmad son in law of complainant have suspicion that Yasin deceased gave our family information to me and above said Khalil Ahmad son in law of complainant who is generalist and influential personality in Islamabad and he managed the murder of his brother in laws Sajid and Yasin deceased through hired criminals. Sajid deceased made a telephone on rescue 15 at 10:02 AM on the alleged day of occurrence i.e. 10.02.2018 that two persons are quarrelling with me and on the same date at 10:17 am a telephonic call was made from the mobile phone of Yasin deceased by complainant Muhammad Akbar that three/four persons quarreled with his sons. At 10;45 a.m on 10-02-2018 Muhammad Yasin then injured was brought to the P.S, a docket was prepared and Muhammad Yasin injured was sent to RHC Khudian from where he was referred to DHQ hospital, Kasur, this fact was not ever brought by the complainant before the I.O, during the course of investigation. There is glaring contradictions between the statements application of the complainant Ex.PA and complaint Ex.PF of the complainant and PWs which are fatal to the prosecution case."

1. After recording evidence and evaluating the evidence available on record, considering arguments advanced by both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction as well as awarding of sentence to them in the afore-stated terms.

2. We have carefully considered both sides' rival submissions and minutely reviewed the evidence on record.

3. As per the prosecution version, in the instant case, the incident took place on 10.02.2018 at 10:00 a.m. in Saidpur, falling within the territorial jurisdiction of Police Station Khudian, District Kasur, wherein Muhammad Yasin and Sajid (sons of Haji Akbar Ali-the complainant) lost their lives. The inter-se distance between the place of occurrence and the police station was 10 kilometers. Haji Akbar Ali (PW-1)-the complainant reported the incident to the police on the same day at 05:00 p.m. through the written application (Ex. PA), based on which Sher Muhammad, A.S.I. (CW-7) chalked out the FIR (Ex. PA/1). There was an inordinate delay of 07 hours in reporting the matter. Haji Akbar Ali (PW-1)-the complainant deposed during examination-in-chief that soon after the incident, he took his son (Yasin) to the hospital for medical treatment to save his life. He (PW-1)-the complainant, deposed during his examination-in-chief that: -

"My son Sajjid Ali succumbed to the injury at the spot, whereas I along with other persons shifted Yasin in injured condition at District Headquarter Hospital, Kasur, while leaving Sadiq and Yasin at the guard of place of occurrence. When I shifted my son Yasin at Hospital, the Doctors available in emergency declared him as dead."

Whereas, during cross-examination, Haji Akbar Ali (PW-1)-the complainant, deposed that: -

"I escorted my son Muhammad Yaseen to hospital according to my version in FIR accompanied with my son in law while boarding on a rented vehicle. I have not produced the driver of rented vehicle. I came to know about the death of my son at the hospital where after checking in emergency doctor informed me about the death of my son Yaseen. I have no knowledge about any prescription/entry in the emergency of DHQ hospital, Kasur. I have no knowledge about any issuance of death certificate of my deceased son Yaseen. I took my son in emergency of DHQ hospital in between 03:30 pm to 04:00 p.m. ----------------- It is correct that we reached DHQ hospital via Deepalpur road. We adopted the passage for reaching DHQ hospital, Kasur through Bhagiana. If one adopts the road via Bhagiana which lead to Khudian and then Kasur. The P.S Khudian is situated at 5/7 acres from the main road."

Haji Akbar Ali (PW-1)-the complainant further deposed during cross-examination that: -

"The constable took me and my injured son to RHC Khudian. The RHC Khudian referred the injured Yaseen due to his precarious condition to DHQ hospital, Kasur. I escorted my injured son along with my other companion at about 10:30/11:00 am from the place of occurrence. We remained at P.S Khudian 11:00 am to 12:00 noon. Yaseen injured remained outside the gate of the police station. It is correct that the detail regarding the escorting Yaseen the then injured to P.S Khudian and then to RHC Khudian are not mentioned in the FIR. It is correct that the details regarding escorting the Yaseen then inured to P.S Khudian, the factum of apprising the Moonchi, sending constable along with the injured and then taking the injured to RHC Khudian are not mentioned in private complaint. It is correct that Moonchi is also called Moharar. --------------------- After the occurrence the car driver of the rented car came along with the rented vehicle. Thereafter Khalil also came there after hearing about the occurrence along with other persons. It was not in my knowledge that till the occurrence that Khalil has arrived back from Islamabad. Prior to the occurrence Khalil did not come to my house. I escorted my injured son Yaseen to P.S Khudian and the person who learned about the occurrence followed me to P.S Khudian, perhaps 3/4 cars reached there. Khalil also came at the police station when I shifted Yaseen in the police station at P.S Khudian. It is correct that Khalil my son in law is related with me with Yaseen injured and was also educated. -------------------------- We escorted the injured Yaseen for the hospital around 10:30 to 11:00 am on a rented car. We were accompanied with Khalil who is also my son in law. We have choosen the road leading Bhagiana to Kasur through Khudian. We firstly went to P.S Khudian. It took half an hour to reach P.S. Khudian. We did not meet SHO there. We informed Moharar and made over him whole story of the occurrence, who had written or not my narrations is not known to me. Probably he would have written something but I cannot say anything about it. He after hearing the whole story sent a constable along with us for taking the injured to hospital. It is correct that we went to RHC Khudian. On seeing the critical condition doctor referred us to DHQ hospital, Kasur. He referred the patient in writing but did not give us any writing in this regard. Nobody else accompanied us in the car to take the injured to hospital. Volunteered that later on people joined us. ---------- Some people followed us out of which some met us at police station to inquire about the occurrence from us, and some joined us at RHC Khudian. Half of the village almost came to inquire."

Sher Muhammad A.S.I. (CW-7) deposed during cross-examination that: -

"It is correct that on dated 10.02.2018 at about 11:00 am complainant Akbar Ali along with 2/3 persons which are not known to me came along with Yaseen alleged deceased in the police station. Volunteer stated that they remained present in police station for many hours and I.O issued them docket for the injuries. I do not know if Yaseen had already died before reaching police station. Soon after the registration of the case, the FIR complainant and his companion left the police station."

According to the deposition of Haji Akbar Ali (PW-1)-the complainant, he took his son Yasin (then injured) to the police station after the incident at about 10:30 or 11:00, and he remained in the police station from 11:00 to 12:00 noon. After that, he took Yasin (then injured) to the RHC Khudian. At the RHC Khudian, the doctor referred Yasin to the DHQ Hospital, Kasur, due to his critical condition. He reached the emergency of DHQ hospital between 03:30 pm and 04:00 p.m. The doctor checked him in the emergency of the hospital and declared that his son had died. Dr. Ch. Arslan Ahmad PGR (CW-1), who conducted the postmortem examination on the dead body of Muhammad Yaseen (the deceased), deposed during examination-in-chief that the duration between injury and death was within 30 minutes. From the testimony of Sher Muhammad A.S.I. (CW-7), it reveals that Haji Akbar Ali (PW-1)-the complainant, remained in the police station for hours. As per the version of Haji Akbar Ali (PW-1)-complainant, keeping in view the critical condition of Yaseen (then injured), the doctor of RHC Khudian referred Yaseen (then injured) to DHQ, hospital Kasur and the complainant reached DHQ Hospital, Kasur at "Zohar time." Haji Akbar Ali (PW-1)-the complainant further deposed during cross-examination that:

"We reached at DHQ hospital, Kasur after Zohar time."

Zohar (Dhuhr) timing on 10.02.2018 was 11:52 a.m., whereas "Asr" timing was 04:06 p.m. At the cost of repetition, Haji Akbar Ali (PW-1)-the complainant, deposed during cross-examination that: -

"Yaseen injured remained outside the gate of the police station."

Whereas Tahir Suhail Ex. S.I. (CW-8), after perusal of the Roznamacha deposed during the cross-examination conducted by the complainant's counsel that: -

"It is correct that Rapat No.8 dated 10.02.2018 recorded by Riasat Ali TASI at 10:45 am to the effect that Yasin son of Akbar Ali Dogar resident of Said Pura in injured condition came at police station and after preparation of docket he was sent to RHC, Khudian in the company of Muhammad Yasin 378/C and he also recorded that after the receipt of MLC whatever will be the situation the proceeding will be conducted."

Tahir Suhail Ex. S.I. (CW-8), deposed during the cross-examination conducted by the complainant's counsel that: -

"I have not received the docket of Yasin the then injured which was prepared as mentioned vide Rapat No.8 dated 10.02.2018. Regarding the said docket no information was provided to me as the FIR was silent about the above said fact, therefore I did not conduct any investigation regarding the above said fact."

The postmortem report (Ex. PR) of Muhammad Yaseen, deceased, has not been challenged by the prosecution, wherein it was mentioned that the duration between injury and death was half an hour. Dr. Ch. Arslan Ahmad (CW-1) deposed during examination-in-chief that: -

"On 10.02.2018 I was posted as Medical Officer at DHQ Hospital Kasur. On the same date at 9:00 p.m I conducted autopsy on the dead body of deceased Muhammad Yaseen, aged about 31/35 years, caste Dogar, resident of Saidpur District Kasur. ----------------- Duration between injury and death was within 30 minutes and between death and post mortem was within 12 hours."

Tahir Suhail Ex. S.I. (CW-8)-the investigating officer also deposed during the cross-examination that: -

"I have not received the docket of Yasin the then injured which was prepared as mentioned vide Rapat No.8 dated 10.02.2018. Regarding the said docket no information was provided to me as the FIR was silent about the above said fact, therefore I did not conduct any investigation regarding the above said fact."

Admittedly, the prosecution witnesses failed to prove when and where Yaseen (then injured) took his last breath. The episode between 10:00 a.m. and 05:00 p.m. on 10.02.2018 is shrouded under mysterious circumstances that are not appealing to reason and logic. If the complainant, along with prosecution witnesses and Yaseen (then injured), reached DHQ Hospital, Kasur, at Zohar time and as per the opinion of the doctor, the duration between the injury and death was 30 minutes, then how the doctor could refer Yasin (then injured) from RHC Khudian to DHQ hospital, Kasur. Haji Akbar Ali (PW-1)-the complainant, in his cross-examination, deposed that he has no knowledge of any prescription/entry in the emergency of DHQ hospital, Kasur, and about any issuance of the death certificate of his deceased son Yaseen. Medical evidence contradicts the ocular account. Medical evidence shows that Yasin (then injured) was alive for half an hour. If we consider the time of the incident in the light of the medical evidence and see when Yasin (then injured) took his last breath, it is at 10:30 a.m. because, according to the prosecution, the time of the incident is 10:00 in the morning. Haji Akbar Ali (PW-1)-the complainant stated that between 10:30 and 11:00 a.m., he escorted Yasin, to the hospital in the rented car. When the complainant took Yasin (then injured) to the hospital, as per the medical evidence, he was already dead. That is why the complainant did not produce the RHC doctor as a witness, nor did he present the doctor of DHQ Hospital Kasur as a witness. The prosecution has not produced a refer slip of RHC Khudian or a death certificate issued by DHQ Hospital, Kasur, during evidence. The non-submission of documents, i.e., the refer slip and the death certificate, creates doubt about the prosecution's case, as a man may lie, but the document cannot. The prosecution failed to prove what the complainant and his witnesses did for seven hours, which put a dent in the prosecution's story.

1. The prosecution put much emphasis on the evidence of the Haji Akbar Ali (PW-1)-the complainant, and Muhammad Yaseen (PW-2)-the eye-witness, on the point the deceased Sajid Ali made that call on 15 before his death at 10:02 a.m. on 10.02.2018 and complainant made the call on 15 at 10:18 a.m. on 10.02.2018 and referred to a copy of call data rescue 15 Kasur to prove that incident against the appellants was reported by Sajid Ali deceased in his life is concerned, we have noted that as per prosecution case on receiving firearm injury Sajid Ali succumbed to the injuries at the spot. It is not the case of the prosecution that any attraction occurred between the deceased and the accused before the incident. A scanned copy of call data rescue 15 Kasur is as follows: -

Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"My son Yaseen in injured condition made a telephonic call on 15 at about 10:30 am where he was fallen at the place of occurrence near the graveyard. The police did not came at the place of occurrence after receiving the call from Yaseen the then injured."

Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"My cell number is 0321-7072603. The cell number of Yaseen deceased is 0301-7988783."

Tahir Suhail Ex. S.I. (CW-8)-the investigating officer during cross-examination conducted by the complainant counsel deposed that: -

"It is correct that on 16.02.2018 I while mentioning sixteen mobile numbers I requested that the call detail of those sixteen numbers will be obtained and due to that effect the application was moved. The call details was not received by me during my posting and investigation. I have not explained in my proceedings that who was the user of the mentioned mobile phone numbers. It is correct that at No.9 the cell number of Yasin deceased i.e. 0301-7988783 is mentioned. It was not brought into my notice that deceased Yasin made call from his mobile at 15 at 10.02.2018. It is correct that according to the Roznamcha there is no mention of receiving any call made at rescue 15 and there is also no mention that any police officer responded to the said call and went to the place of occurrence."

Tahir Suhail Ex. S.I. (CW-8)-the investigating officer during cross-examination conducted by the defence counsel deposed that: -

"It is correct that complainant Akbar Ali and Sadiq, Ilyas, Yasin PWs and even Yasin did not apprise me about the call on rescue 15. It is also correct that complainant Akbar Ali in his application for registration of case and also in the FIR did not mention about the call made on rescue 15. ---------------------- It is correct that as per PMR No.10/2018 of Yaseen deceased the duration between injury and death was within 30 minutes."

The caller did not give the accused's name in the call on 15. It has also been argued that Sajid Ali (deceased) did not make a call. In support of their submission, the learned counsel for the appellants referred to the evidence of Haji Akbar Ali (PW-1)-the complainant, Muhammad Yaseen (PW-2)-the eye-witness, Muhammad Amjad Ali 51/HC (CW-4), and Tahir Suhail Ex. S.I. (CW-8)-the investigating officer. Tahir Suhail Ex. S.I. (CW-8)-the investigating officer said that the dead body of Sajid Ali (deceased) lay at the place of occurrence till 05:00 p.m., and after that, the dead body was sent to the mortuary. Haji Akbar Ali (PW-1)-the complainant deposed during examination-in-chief that: -

"My son Sajjid Ali succumbed to the injury at the spot, whereas, I along with other persons shifted Yasin in injured condition at District Headquarter Hospital, Kasur, while leaving Sadiq and Yasin at the guard of place of occurrence. When I shifted my son Yasin at Hospital, the Doctors available in emergency declared him as dead."

In similar lines, Muhammad Yaseen (PW-2)-the eye-witness deposed. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"My son Sajid when fell down on the ground his head was towards the north whereas his foot was towards south. I administered water to Yaseen and also lifted him whereas Sajid succumbed to the injuries at the spot. My clothes were not smeared with blood when I lifted injured Yaseen."

Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"The police arrived at the place of occurrence at about 05:00 pm. ---------------- The dead body was escorted on a Dala which was fetched by the police and shifted the dead body to the hospital."

Haji Akbar Ali (PW-1)-the complainant, also deposed during cross-examination that: -

"It is correct that I and Khalil my son in law boarded Yaseen in injured condition in the car. Our clothes were not smeared with blood. It is correct that bloods was oozing out from the body of injured Yaseen which also caused his clothes smeared with blood. It is correct that seat of car where injured Yaseen was sitting also smeared with blood. Since I was sitting on front seat, therefore, my clothes were not smeared with blood. Might be clothes of Khalil smeared with blood as injured Yaseen was in the lap of Khalil."

Contrary to the deposition of Haji Akbar Ali (PW-1)-the complainant, Muhammad Yaseen (PW-2)-the eye-witness, deposed during cross-examination that: -

"Our hands severed with blood of injured but not the clothes. We showed our blood stained hands to the IO when IO came at the spot. When I Sadiq and Ilyas put the injured on the rear seat of the car his head was in the lap of Haji Akbar complainant."

Muhammad Amjad Ali 51/HC (CW-4) deposed during cross-examination that: -

"It is correct that on 10.02.2018 I along with Tahir Suhail S.I, Muhammad Serwar ASI and Muhammad Imran HC reached at place of occurrence at 5:00pm. ------------ At place of occurrence dead body of deceased Sajid was lying there. ---------- We reached at DHQ, Hospital, Kasur at 7:00pm. It is correct that at that time dead body of deceased Yasin brother of deceased Sajid was also in mortuary."

Tahir Suhail Ex. S.I. (CW-8)-the investigating officer during examination-in-chief that: -

"On 10.02.2018 I was posted as Incharge Homicide Investigation Unit P.S Khudian, Kasur. On the same day investigation of this case was entrusted to me. I along with Muhammad Sarwar ASI, Ajmad Ali 51/HC, Muhammad Imran 1293/HC and Muhammad Asif constable reached at place of occurrence where dead body of Sajid deceased was lying and I inspected the dead body in the presence of 22 individuals."

Tahir Suhail Ex. S.I. (CW-8)-the investigating officer deposed during cross-examination that: -

"The delay before the registration of the FIR was caused due to complainant. It is correct that FIR was registered with delay of seven hours. FIR was handed over to me outside the police station at about 05:10 p.m. I proceeded to the place of occurrence on official vehicle."

It is admitted fact that Haji Akbar Ali (PW-1)-the complainant, Muhammad Yaseen (PW-2)-the eye-witness, Muhammad Amjad Ali 51/HC (CW-4), and Tahir Suhail Ex. S.I. (CW-8)-the investigating officer deposed that the investigating officer arrived at the place of occurrence after 05:00 p.m. and after that, the dead body of Sajid Ali (deceased) was sent to the mortuary after about seven hours from the time of occurrence. A substantial period had lapsed between the incident and sending the dead body from the spot to the mortuary. Dr. Ch. Arslan Ahmad (CW-1), who conducted a postmortem examination upon the dead body of Yaseen, deposed during cross-examination conducted by the learned counsel for the complainant that: -

"It is correct that according to application for registration of the case, inquest report and the FIR which bear my signatures, the time of occurrence is 10:00 a.m on 10.02.2018. ----------------- Prior to conducting autopsy I have read the said documents. It is correct that according to inquest report, which was prepared when the dead body was in the dead house. Time of receiving the dead body in the dead house is recorded as 11:15 a.m whereas the relevant papers were received at 7:35 p.m and I conducted postmortem examination at 9:00 p.m on the same day i.e. 10.2.2018. I have mentioned the time of death as 10:00 a.m. in the PMR ExPR approximately."

Dr. Ch. Arslan Ahmad (CW-1) deposed during cross-examination conducted by the defence counsel that: -

"It is correct that time of death of deceased Yaseen mentioned in ExPR as 10:00 a.m is my independent assessment. We mentioned the time of death by keeping in view the condition of the body regarding developing of rigor mortis and also while taking information from the police official. It is correct that in between the time of 11:15 a.m when dead body was received upto 7:35 p.m I did not receive the relevant police papers. After studying the documents, I started to conduct autopsy at 9:00 p.m. According to inquest report the inquest was held by the I.O in the hospital upon the dead body of Yaseen."

Dr. Muhammad Waqas Umer (CW-9), who conducted postmortem examination upon the dead body of Sajid Ali, deposed during cross-examination conducted by the learned counsel for the complainant that: -

"According to the police information time and death of Sajid deceased was 10:00 am dated 10.02.2018. Time of dead body receiving in dead house was 07:00 pm dated 10.02.2018 and receiving complete documents from police at 07:00 pm on 10.02.2018 and conducting autopsy at 10:30 pm approximately."

As deposed by Dr. Ch. Arslan Ahmad (CW-1) and Dr. Muhammad Waqas Umer (CW-9), Sajid Ali died at 10:00 a.m., the prosecution failed to prove who made the call on 15, and if the dead body of Yaseen was received in the dead house at 11:15 a.m., then the entire prosecution story becomes doubtful. Thus, the presence of these witnesses, i.e., Haji Akbar Ali (PW-1)-the complainant, Muhammad Yaseen (PW-2)-the eye-witness at the time of occurrence, becomes doubtful.

1. As per the contents of the application for the registration of case (Ex. PA) and FIR (Ex. PA/1), there was a dispute over water between the parties. However, while filing the private complaint (Ex. PF) on 30.06.2018, after 04-months and 20 days, the motive was improved, and the complainant mentioned that there was a dispute over the tube well between the complainant and the accused party. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"The land was in my name. It is correct that while describing the motive of the occurrence I have not specifically named any accused regarding rift on the water. It is correct that the details of the motive is not mentioned in the FIR."

The defence has brought on record the contradictions in the evidence of Haji Akbar Ali (PW-1)-the complainant. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"I might have got recorded in my application Ex.PA that the accused persons wanted to get possession of the water motor. Confronted with Ex.PA where it is not so recorded."

Haji Akbar Ali (PW-1)-the complainant admitted during cross-examination that he had not pointed out the place where the motor was installed and the land was being irrigated by the tube well. The relevant portion of the cross-examination is as follows: -

"As the motor was situated at the distance of 3 acre from the place of occurrence, therefore, the same was not pointed out to the draftsman. I have not pointed out the specific land which was being irrigated by the tubewell according to our version. Volunteered that the site plan was prepared with regard to place of occurrence. I have pointed out the land which was being cultivation. I have pointed out the place where the tractor was present."

Whereas Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"As there was no previous enmity between the parties therefore I did not record any previous enmity between the parties in my statement before police."

He (PW-2) also deposed during the cross-examination that: -

"The way leading to the tubewell of Haji Akbar complainant is a thorough-fare."

The incident occurred on the thoroughfare. The deceased and the complainant were returning after irrigating the field and going towards their cattle shed. Meanwhile, Muhammad Yaseen (PW-2) was busy ploughing the land with the tractor. According to the prosecution case, the witnesses were returning from their tube well to their cattle shed. The incident occurred when they reached the graveyard on their way to the cattle shed. According to the appellants, the prosecution witnesses had a strained relationship between them. The appellants, Tariq and Abid, have admitted that their mother had filed a civil suit, and a copy of the plaint titled Hameedan Bibi v. Akbar Ali (Ex. PB) was filed on 04.05.2018 regarding that tube well. Haji Akbar Ali (PW-1)-the complainant stated that the connection of the Tube-well was installed 20 years ago, and the connection was in the name of Bashir Ahmad. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"My father Rehmat Ali had two brothers one was Bashir and the other was Akbar Ali who was died in my childhood. It is correct that Pervaiz is son of my paternal uncle Bashir and the accused persons namely Tariq and Abid are sons of said Pervaiz. It is correct that accused persons namely Arshad, Farooq and Asif are sons of daughter of Bashir my paternal uncle. Pervaiz son of Bashir died in the year 2009. -------- It is not in my knowledge that Tariq own how much land. Tubewell connection was in the name of Bashir initially. It is correct that land of accused persons namely Abid and Tariq is situated adjacent to my land. My land is also cultivated by kanal water. My turn of water start at 01:05 pm on each Tuesday. "

The deposition of Haji Akbar Ali (PW-1)-the complainant, reveals that tubewell connection, was initially installed in the name of "Bashir," who was the paternal uncle of the complainant. Haji Akbar Ali (PW-1)-the complainant had mentioned in the written statement (Ex. PC) that he and his uncle Bashir both had been jointly using the tube well in equal shares since about 1995, and both have had it, for which Haji Bashir Ahmed executed a written agreement on 22.08.2007. Later, in early 2018, Haji Bashir Ahmed received the expenses of his 50 percent share from Akbar Ali and assigned its ownership entirely to Haji Akbar. Haji Akbar had not submitted any written agreement about the purchase of the remaining 50 percent share. He only submitted an affidavit of Haji Bashir Ahmed (Ex. PD), according to which his son Parvez died a long time ago, and his sons do not have any concern with the tube well. This affidavit was written on 10 May 2018, and based on the affidavit, the civil court declared the suit infructuous, vide order dated 07.06.2018, while Haji Bashir Ahmed did not appear and verify the contents of the affidavit (Ex. PD). Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"It is correct that land of Pervaiz and my land were irrigated from the electric tubewell before the occurrence which was in the name of Bashir at that time. Bashir my paternal was alive during the presence occurrence. Said Bashir died 2/3 months back from today. I do not remember the date when said Bashir died. I cannot assign any reason for not remembering the date of death of Bashir."

Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"It is correct that in the civil suit filed by Mst. Hameedan Bibi the version of said Hameedan Bibi was that the tubewell connection was in the name of Bashir Ahmad his father in law. Witness volunteer said Bashir was my paternal uncle. Said Bashir was paternal grandfather of accused Tariq and Abid whereas he was maternal grandfather of accused Arshad, Farooq and Muhammad Asif."

The deposition of Haji Akbar Ali (PW-1)-the complainant, reveals that the land of Pervaiz and his land were irrigated from the tube well before the occurrence. Pervaiz was the father of the appellants Tariq and Abid. Haji Akbar Ali (PW-1)-the complainant deposed that the accused were the paternal and maternal grandchildren of Haji Bashir Ahmad. The incident occurred on 10.02.2018. Haji Akbar Ali (PW-1)-the complainant deposed that earlier in the year (2018), he purchased a 50% share in the tube well from Bashir but did not say when he purchased it, and the same is not mentioned in Bashir's affidavit. Both parties admitted that Bashir's son and daughter's children are accused in this case. In such circumstances, Bashir's appearance before the court was necessary to verify the affidavit's contents (Ex. PD). Keeping in view the deposition of the complainant (PW-1) it reveals that after the occurrence Haji Bashir Ahmad sold his share. The depositions of the prosecution witnesses, i.e., Haji Akbar Ali (PW-1)-the complainant, and Muhammad Yaseen (PW-2), revealed that the dispute was over the water for irrigation through tube-well water. Before the occurrence, both Pervaiz's (late father of appellants Abid and Tariq) and the complainant's lands were irrigated by the same tubewell. Before the occurrence, both Pervaiz's (late father of appellants Abid and Tariq) and the complainant's lands were irrigated by the same tubewell. The tube well was installed on the way, a thoroughfare leading east to west.

This takes us to the oral evidence of eye-witnesses. The eye-witnesses were related to the deceased, and therefore, it was submitted that they were interested and chance witnesses. The term "interested" postulates that the witness must have some direct interest in having the accused convicted somehow or other due to some animus or other reason. An interested witness is interested in securing the conviction of a person out of vengeance or enmity. The origin of the incident was shrouded in mystery as the complainant admitted that the tubewell irrigated both lands before the occurrence. So, irrigating land with tubewell water was not a motive for the commission of the crime. In the present case, the only circumstances which, at best, could be said to have been proved by the prosecution and the defence are enmity between the parties on account of criminal litigation. Haji Akbar Ali (PW-1)-the complainant and Muhammad Yaseen (PW-2), admitted during cross-examination that Muhammad Arshad got registered a case vide FIR No. 126 (Ex. PV), dated 08.03.2017, under sections 302 and 34 P.P.C. against the Khalil son of Arif, son-in-law of the complainant (PW-1). Haji Akbar Ali (PW-1)-the complainant admitted during cross-examination that:-

"Khalil son of Arif who is my son in law. It is correct that Khalil and Sadiq PW are first cousin. ------------- My son in law Khalil had studied at Islamabad for 10/12 years and now a days he doing job in the same city. -----------------I do not know how many days prior to the occurrence Khalil my son in law came from Islamabad. After the occurrence the car driver of the rented car came along with the rented vehicle. Thereafter Khalil also came there after hearing about the occurrence along with other persons. It was not in my knowledge that till the occurrence that Khalil has arrived back from Islamabad. Prior to the occurrence Khalil did not come to my house. I escorted my injured son Yaseen to P.S Khudian and the person who learnt about the occurrence followed me to P.S Khudian, perhaps ¾ cars reached there. Khalil also came at the police station when I shifted Yaseen in the police station at P.S Khudian. It is correct that Khalil my son in law is related with me with Yaseen injured and was also educated. It is correct that FIR No.126/2017 was got recorded at the instance of Muhammad Arshad accused on 08.03.2017 at P.S City Chunian. ----------- According to the version of Arshad, he got married with Aqsa daughter of Muhammad Arif on 15.05.2016 against the wishes of the parents of Aqsa. According to the said FIR the version of Arshad was that on 01.03.2017 the accused persons took Mst. Aqsa and thereafter murdered her. According to said FIR the accused persons were Arif, Umer, Khalil son of Arif and Haji Baqar. I do not know whether Tariq present accused was the witness of the Nikah between Arshad and Aqsa. The witness volunteered that Nikahnama is a fake document. I have not seen the Nikahnama. --------------- It is not in my knowledge that Farooq and Arshad accused of this case took the stand in the present case that Yaseen (deceased) informed Arshad (accused) son of Bashir that Khalil etc. had murdered his wife Aqsa whereupon Arshad got registered an FIR against Khalil and three others on 08.03.2017."

Contrary to the deposition of Haji Akbar Ali (PW-1)-the complainant, Muhammad Yaseen (PW-2), deposed during cross-examination that: -

"Khalil did not arrive at the place of occurrence so long I remained present there. He came at the spot on the next day of occurrence. I do not remember the time when he went to the place of occurrence. The police did not arrive at the place of occurrence on the next day of the occurrence. My stance that Khalil went to the place of occurrence on the next day of the occurrence is correct. On the next day I myself met Khalil at the place of occurrence as our cattle shed is near to the place of occurrence and I was present there."

Muhammad Nawaz (PW-3), the identifier of the dead bodies, and the complainant is his brother-in-law (Behnoe), deposed during cross-examination that: -

"Khalil was not seen by me on the spot as well as in the hospital but however, he met me in the morning at 06:00 am on 11.02.2018 in the village. I have not inquired from Khalil where he was. ---------------We also have not seen Khalil in hospital. Khalil met me on the next day early in the morning at 06:00am."

Haji Akbar Ali (PW-1)-the complainant and Muhammad Yaseen (PW-2) admitted that the crime case was registered against Khalil and his family members for murdering Aqsa. Haji Akbar Ali (PW-1)-the complainant admitted during cross-examination that: -

"I have no knowledge whether sister of my son in law Khalil namely Aqsa contracted marriage Nikah on her own choice with the accused Arshad. I have no knowledge whether Khalil filed any application for registration of FIR against accused Arshad regarding abduction of his sister Aqsa. I have no knowledge about filing of writ petition under section 491 Cr.P.C by Arshad contending that Khalil detained wife of Arshad in his house. -------------------- I have no knowledge whether same Aqsa was forcibly married with brother of witness Yasin without taking the divorce from Arshad accused. I have no knowledge about the marriage of Aqsa and Haji Muhammad brother of Yasin witness. I have no knowledge whether any writ petition was filed in the Hon'ble Lahore High court Lahore in which a bailiff was appointed to recover Aqsa Bibi wife of Arshad accused. I have no knowledge whether after such circumstances we concealed Aqsa Bibi in order to avoid any further complication. ------------ I have no knowledge for filing of another writ petition in Hon'ble Lahore High Court Lahore subsequently. I had no knowledge whether my son Yasin deceased had good relations with the accused persons. I have no knowledge whether Khalil my son in law had doubts that my deceased son Yasin used to inform and share the secrets of the family with the accused persons. ----------------- Arshad might have got registered a case FIR No.126/17 P.S City Chunian for the murder of Aqsa under section 302/34 P.P.C. against Khalil etc."

The complainant replied to the questions about registering a criminal case by saying that he did not have "knowledge." After that, the prosecution placed on the record a copy of FIR (Ex. PV) and judgment dated 21.02.2019 (Ex. PW) whereby Khalil Ahmad, etc., were acquitted by the trial court after accepting an application under Section 265-K Cr.P.C. Muhammad Yaseen (PW-2), deposed during cross-examination that: -

"I know Aqsa Bibi sister of Khalil son in law of complainant. She was married with younger brother of Haji Muhammad. -------------- My brother Haji Muhammad is resident of village Majra. Arshad accused was not living in village Majra. ------------------- It is correct that Arshad filed a writ petition in the Honourable Lahore High Court, Lahore from where a bailiff was deputed to recover Aqsa Bibi. ---------------- Arshad accused might have filed second writ petition in the Honourable Lahore High Court Lahore for recovery of Aqsa Bibi. -------------- It is correct that Arshad accused got registered case FIR No.126/2017 dated 8.3.2017 under section 302/34 P.P.C. at PS City Chunian against Arif, Umar brother of Khalil mentioned above, along with Khalil and Haji Baqar. Volunteered that Arshad accused had no proof of any Nikah of Aqsa with him. ------------- It is correct that the accused persons Arshad, Farooq and Asif were declared not involved in this occurrence by the I.O."

Muhammad Arshad, accused/appellant No.3, produced attested copy of Criminal Misc. No. 3404-H-2017 for his wife's recovery, "Aqsa Bibi," and the court proceedings along with the order dated 13.03.2017 (Ex. DB), which reveal the court was apprised that "Aqsa Bibi" was murdered. FIR No. 126 dated 08.03.2017 was registered under Sections 302 and 34 P.P.C. at Police Station City Chunian, District Kasur (Ex. DD). USB (Ex. DE) and copy of Nikah-Nama (Mark-DA) show that "Aqsa Bibi" did not die a natural death. This fact was admitted by Muhammad Yaseen (PW-2). Muhammad Yaseen (PW-2) deposed during cross-examination that: -

"It is correct that FIR was got registered on behalf of Arshad accused regarding the alleged murder of Aqsa sister of Khalil at P.S City Chunian vide FIR No.126/2017 under section 302/34 P.P.C. on 08.03.2017 place of venue mentioned in the FIR in village Majra Tehsil Pattoki. The witness volunteered that Aqsa was not murdered, she was married with my younger brother and due to maternity problem she died and a false case vide FIR No.126/2017 P.S City Chunian was registered. The version of present accused Arshad, Farooq and Asif was given to the Investigating Officer that Yaseen son of Akbar passed the information regarding the murder of Aqsa by the hand of Khalil etc. in the village Majra whereupon Arshad got registered the said case. The witness volunteered stated that according to the medical report of Aqsa she died due to electric shock."

As is well known, enmity is a double-edged weapon that cuts both ways. If, on the one hand, it provided a motive for the accused to commit the occurrence in question, on the other hand, it equally provided an opportunity for the first informant to implicate his enemy. Proof of motive by itself may not be a ground to hold the accused guilty. In this background, the appellants' implication in the case is quite probable. Due to the involvement of the complainant's son-in-law in the murder case, it is quite probable for prosecution witnesses to implicate the accused in a criminal case. Motive is a double-edged weapon for the occurrence and also for false implication. Different motives always operate in the mind of the person making the false accusation. The accused, based on his motive to commit the crime, cannot by itself lead to a judgment of conviction.

1. The defense has also brought on the record how the prosecution witnesses and the deceased returned after irrigating their land. The defence has brought on the record contradictions between the contents of the application for registration of the case (Ex. PA) and the court statement made by Haji Akbar Ali (PW-1)-the complainant. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"I have got recorded that I along with my son were going to cattle shed while coming back after irrigation from our tubewell. Confronted with Ex.PA where it is not so recorded, however, it is recorded that I along with my sons had gone to the tubewell for irrigation the crops. I have got recorded in my application Ex.PA that when we reached near the graveyard situated near to our cattle shed. Confronted with Ex.PA where the word near to our cattle shed is not recorded. I have pointed out my cattle shed to the I.O as well as draftsman. ------------- ---------I have got recorded in application Ex.PA that accused persons were ambushed along with the wall of graveyard. Confronted with Ex.PA where the word ambushed and wall are not recorded. I have pointed out the specific place along with the wall of graveyard where the accused were ambushed to the I.O and to the draftsman. -------------------I got recorded in application Ex.PA that after sustaining first fire my son Sajid fell down on the ground. Confronted with Ex.PA where the word fell down on the ground after sustaining the first fire is not recorded. It is recorded in Ex.PA by me that the second fire shot of Muhammad Arshad opened with rifle landed on the left arm of Sajid and also recorded that Muhammad Farooq son of Bashir Ahmad opened his fire shot with rifle with landed on the left arm of Sajid and due to these fire shots Sajid had fallen on the ground and succumbed to the injuries and the same fact is recorded in my examination in chief. Confronted with examination in chief of the complainant where Muhammad Farooq son of Bashir Ahmad opened the fire of rifle which hit the left arm of Sajid is not recorded."

Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"On the same day I.O reached at the place of occurrence and had taken the articles into possession; I got recorded my statement under section 161 Cr.P.C. I incorporated my signature on my statement under section 161 Cr.P.C with the pen which was provided to me by the I.O. I did not thumb mark my statement. I am studied upto 8th class. I owned 2 acres of land. ----------------------------I got recorded in my statement under section 161 Cr.P.C that I was present in the fields near to the place of occurrence and was busy in ploughing the land through tractor. Confronted with Ex.DA where the word near to the place of occurrence is not recorded. I had recorded my statement under section 161 Cr.P.C but have not seen the same. It is correct that statement Ex.DA does not bear my signature. ----------------------------I got recorded in my statement under section 161 Cr.P.C. that accused persons namely Abid, Tariq sons of Pervaiz, Muhammad Arshad, Muhammad Farooq and Muhammad Asif sons of Bashir where present near the graveyard on the way and were ambushed beside the graveyard. Confronted with Ex.DA where the word ambushed is not recorded. I got recorded in my statement Ex. DA that Arshad accused made fire on the left arm of Sajid in his lying condition while placing his rifle on his left arm. Confronted with Ex. DA where the word placing his rifle is not recorded but it is recorded that Arshad while coming near to Sajid when he was fallen on the ground fired on his left arm."

As per the prosecution version, Muhammad Yaseen (PW-2), along with Muhammad Sadiq, was ploughing the field of the complainant. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"I do not remember whether I got recorded in Ex.PA that Yaseen and Sajid were ploughing the fields but I have do not remember whether I got recorded the means of ploughing the fields. I have pointed out the tractor with which the Pws were ploughing the fields to the I.O. I have not provided the title document of the tractor to the I.O. I have not mentioned the number, make and ownership of the tractor to the I.O. I have apprised the draftsman the place of the tractor where the witnesses were ploughing the fields. I have also pointed out the field to the draftsman. I have not produced the tractor before the subsequent Investigating officer as none of them directed me to produce the same. -----------------------I have got no tractor of my own. The witness volunteered that the tractor was brought by Yaseen PW. ------------- Neither the I.O summoned the owner of the tractor nor we produced him before the I.O. I have not got recorded the name of the owner of the tractor in complaint. ------------------------The site plan was prepared on my pointation and I met draftsman and I.O. at that time. -------------------Ilyas had come with tractor to fetch the cultivator which was present near my boundary wall of Havaili. I have pointed out the place of presence of Ilyas PW and have not pointed to him regarding the tractor he brought. I had not pointed out in the scaled site plan hew (Kassi) to the draftsman. I have pointed out to the I.O where the hew (Kassi) was fallen.

Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"It is correct that I do not own any agricultural land in village Saidpur, however, they are my relatives who reside there. I have been apprising the Investigating officer during the investigation that I use to reside and has been cultivating the land in village Saidpur. It is correct that my residence is recorded in village Bhagiana because I am permanent resident of village Bhagiana. -------The intervening distance between place of occurrence and village Bhagiana is about 1-Kilometer. ------------------I have pointed out the place where I was cultivating the land with the tractor. I have not got recorded in my examination in chief that who was the driver of the tractor. Volunteered that I was driving the tractor. ----------------------The tractor was present at the same place where it was present at the time of occurrence and I pointed out the presence of the tractor to the I.O when he came at the spot on the day of occurrence. I have shown the place where I was cultivating with tractor and that was the field towards the northern side of the field of one Sher son of Bashir Ahmad. I have pointed out the same place to the draftsman."

Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"In the investigation of Tahir Sohail I.O only once the site plan was prepared by the draftsman. We have not got prepared any site plan from Tahir Sohail. I.O"

Muhammad Yaseen (PW-2)-the eye-witness stated that he was cultivating the land with a tractor, which was at the northern side of the fields of one Sher son of Bashir Ahmad and he pointed out the same to the investigating officer as well as to the draftsman. On perusal of unscaled site plan (Ex. CW-8/D), it reveals that the land of Haji Akbar Ali (PW-1)-the complainant falls at the northern side of the agricultural land of Sher son of Bashir Ahmad. Whereas the presence of the witnesses, i.e., Muhammad Yaseen (PW-2), Muhammad Sadiq, and Ilyas, was shown at point "K," and on the same point, the land was plowed, which is at the southern side of the land of Sher son of Bashir Ahmad. Whereas the land of Haji Akbar Ali (PW-1)-the complainant, is shown in the site plan on the northern side and between the land of Haji Akbar Ali (PW-1)-the complainant and Sher son of Bashir Ahmad, there was a passage. The scanned copy of the unscaled site plan (Ex. CW-8/D) is as follows: -

In the scaled site plan (Ex. CW-5/1), the passage between the land of Sher son of Bashir Ahmad and the land of the complainant is shown, and on the passage, the tubewell is shown. The scanned copy of the scaled site plan (Ex. CW-5/1) is as follows: -

In the scaled site plan (Ex. CW-5/1), the presence of eye-witnesses is shown at point "E," which is on the northern side of the land of the complainant. The position of the witnesses has been changed in the scaled site plan (Ex. CW-5/1) from the southern side to the northern side. On the perusal of the inquest report (Ex. CW-8/A), in column No. 24, a map of the place of occurrence has been drawn, which reflects the same position shown in the un-scaled site plan. The scanned copy of the inquest report (Ex. CW-8/A) is as follows: -

Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"It is correct that a path leads towards east from the main passage which is 5/6 feet wide in between my land and the land of Sher. Wheat crop was present in the field of Sher. Yaseen was ahead of Sajid."

Haji Akbar Ali (PW-1)-the complainant and Muhammad Yaseen (PW-2)-the eye-witness, changed their stance and presence of the witnesses on the land, which was plowed before the occurrence by the witnesses to strengthen their case. It is the case of the prosecution that due to a dispute of water on irrigation, the incident took place. However, only the tube well is shown in the passage. However, the agricultural land belonging to the accused side has not been shown in the unscaled and scaled site plans. While replying to the questions put by the learned counsel for the complainant, Sadiq Ali Qamar (CW-6)-draftsman admitted that: -

"On 15.02.2018 I.O Tahir Sohail called me on telephone. I reached at police station in between 11:00 to 12:00 noon. We reached at the place of occurrence approximately at 01:30 pm. On the pointation of complainant and PWs and on the direction of I.O I took rough notes. Thereafter I retained the rough notes along with me. It is correct that on 25.04.2018 I after preparation I presented the site plan to the then I.O. I also recorded my statement to the I.O."

There is an admission on the part of Sadiq Ali Qamar (CW-6)-draftsman, that on the pointing of the complainant and PWs and at the direction of the investigating officer, he prepared scaled site plans (Ex. CW-5/1 and Ex. CW-5/2). Sadiq Ali Qamar (CW-6)-draftsman also deposed during cross-examination that: -

"The whole plan is silent regarding the place which was being cultivated with the tractor. It is correct that it was shown in the site plan that the land was cultivated with the tractor. Had any witness had pointed to me I would have shown the cultivated land with tractor in the site plan. Neither I had seen any cultivated land or vacant land nor the I.O had shown to me such land. The presence of cultivator of the tractor had not been shown or stated by any PW to me. ------------------------The witnesses had not pointed out/shown to me where the witnesses allegedly irrigating the field with the tubewell water. The I.O and PWs had not informed me from where they were coming and where they were going. I had not shown the place where the accused persons had ambushed. ---------- On patch, no crime empty is mentioned in the site plan. ------------------------Delay caused due to two factors firstly I was sick and secondly I.O Tahir Sohail did not come to receive site plan from me. Thereafter Tahir Sohail was transferred and Qurban Shabbir received site plan. I did not mention number of crime empties and bore at point K due to the reason that I.O Tahir Sohail had told me that he would give the number and bore of crime empties, he has later on, not given the above said information to me. Had the witnesses and complainant told to me regarding the number and bore of the crime empties I would have been recorded the same.------It is correct that point C mentioned in scaled site plan is totally different from point C mentioned in the unscaled site plan as the name of Akbar complainant is not mentioned at point C in unscaled site plan. It is also correct that point D shown the scaled site plan is entirely different from point D mentioned in the unscaled site plan. It is correct that in point D of unscaled site plan name of Ilyas PW is not mentioned. It is correct that point E in the scaled site plan is altogether is different from point E mentioned in unscaled site plan. It is correct that names of Yasin and Sadiq PWs are not mentioned at point E in unscaled site plan. It is correct that points F, G, H and I mentioned in both the site plans are similar. Point J mentioned in scaled site plan is different from point J mentioned in unscaled site plan. It is correct that point K mentioned in the scaled site plan is entirely different from point K mentioned in the unscaled site plan. After giving the rough notes and handed over to me rough site plan by the I.O and after taking rough notes by me after 3-4 days from 15.2.2018 Tahir Sohail SI dictated to me about the different points changing from unscaled site plan according to FIR."

From the prosecution evidence, it reveals that the scaled site plan and unscaled site plan were prepared on the pointing of the prosecution witnesses, i.e., Haji Akbar Ali (PW-1)-the complainant, and Muhammad Yaseen (PW-2), and this fact also got reaffirmed by the learned counsel for the complainant while cross-examining Sadiq Ali Qamar (CW-6)-draftsman. In both site plans, a significant change was made about the land the witnesses ploughed. The substantial change made in the site plan is with purpose. If the presence of the witnesses is considered on the land of Haji Akbar Ali (PW-1)-the complainant on the southern side, then it was not possible for the witnesses to witness the occurrence with a specific role, which took place on the path, which leads from south to north, as in the unscaled site plan (Ex.CW-8/D), point "K" was shown at the south eastern side, away from the place of occurrence, where land was ploughed. The unscaled site plan also does not demonstrate the complainant's presence. In the scaled site plan (Ex. CW-5/1), at point "C," the complainant's presence has also been shown on the path from south to north. The main passage leads from south to north; at point "D," the presence of PW-Ilyas was shown, and at point "E," the presence of Yasin, Zafar and Sadiq PWs was shown, which is on the northeastern side. If witnesses are present at considerable distance from the place where deceased received injuries by the hands of assailant(s) and grown up crop is intervening the places then witnesses' deposition with specification of roles of assailants qua inflicting firearm injuries is not believable; though complainant annexed site plan with changed detail of place of occurrence with complaint, yet did not negate correctness of site plan annexed with state case as well as Naqsha Khasra detailed in Column No.24 of the inquest report during trial of the case, hence, changed site plan is of no help to the case of complainant. The change of the position of the witnesses is deliberate. As per the scaled site plan (Ex. CW-5/1) and the statement of Sadiq Ali Qamar (CW-6), a draftsman, there was a wheat crop adjacent to the main passage on the northeastern side, and if witnesses were present on the eastern side, then; in the presence of wheat crop, it was not possible to see the incident with the specification. Sadiq Ali Qamar (CW-6)-draftsman deposed during cross-examination that: -

"All the points of site plan were pointed out to me by the complainant and witnesses and the same is written therein. Tahir Sohail SI got dictated me all the points on the pointation of complainant and PWs. At point K, number of crime empties and bore is not mentioned and about this, none of the PWs had pointed to me. It is correct that one main passage leads from north to south and one shortage links the same path and leads towards eastern side. The short passage is leading towards east and towards the southern side from it, wheat crop is shown which is also adjacent to the main passage. There was crops along with the main path towards eastern side of the path. There was no vacant field towards the eastern side of the main path."

The prosecution has failed to establish which land was irrigated by the accused side. Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"I have got recorded regarding the rift of the water with the accused persons in the FIR. Perhaps I might have recorded in the contents of FIR the date of dispute over water issue."

Haji Akbar Ali (PW-1)-the complainant also deposed during cross-examination that: -

"I have got recorded that I along with my son were going to cattle shed while coming back after irrigation from our tubewell. Confronted with Ex.PA where it is not so recorded, however, it is recorded that I along with my sons had gone to the tubewell for irrigation the crops. I have got recorded in my application Ex.PA that when we reached near the graveyard situated near to our cattle shed. Confronted with Ex.PA whether the word near to our cattle shed is not recorded. I have pointed out my cattle shed to the I.O as well as draftsman. ---------------- I have got recorded in application Ex.PA that accused persons were ambushed along with the wall of graveyard. Confronted with Ex.PA where the word ambushed and wall are not recorded. I have pointed out the specific place along with the wall of graveyard where the accused were ambushed to the I.O and to the draftsman. ---------------- I have not pointed out the specific land which was being irrigated by the tubewell according to our version. Volunteered that the site plan was prepared with regard to place of occurrence. I have pointed out the land which was being cultivation. I have pointed out the place where the tractor was present. --------------Graveyard comprises of 15/16 acres of land and on which 4/5 tree are present. One bamboo plant is present on the corner of land of Sher."

Haji Akbar Ali (PW-1)-the complainant filed a private complaint (Ex. PF) after four months and twenty days on the ground that his presence was not shown in the unscaled site plan. The complainant's counsel did not ask any questions from Tahir Suhail S.I. (CW-8)-the Investigating Officer, during the cross-examination about the unscaled site plan (Ex. CW-8/D) that he had made, nor did he ask any questions about the sketch made by him (the Investigating Officer) in column No. 24 of the inquest Report (Ex. CW8/A). The complainant claims that his presence was not mentioned in the unscaled site plan (Ex. CW-8/D), and Muhammad Yaseen (PW-2) deposed that he did not get prepared site plan from the Investigating Officer about the crime scene. One of the reasons for filing a private complaint was that the Investigating Officer did not show the presence of the complainant in the unscaled site plan (Ex. CW-8/D), but in this regard, he was not asked any questions, which indicates that the unscaled site plan (Ex. CW-8/D) was correct. The relevant portion of the cross-examination of Haji Akbar Ali (PW-1)-the complainant, is as under: -

"I have complained about the factum of non-mentioning me as eye-witness in the rough site plan before the S.P."

But during cross-examination, Haji Akbar Ali (PW-1)-the complainant admitted that: -

"Graveyard comprised of 15/16 acres of land and on which 4/5 tree are present. One bamboo plant is present on the corner of land of Sher."

By admitting the presence of a bamboo plant in the corner of the land of Sher, Haji Akbar Ali (PW-1)-the complainant admitted the unscaled site plan (Ex. CW-8/D). A bamboo plant was shown in the unscaled site plan (Ex. CW-8/D) but not in the scaled site plan (Ex. CW-5/1). All the above facts create doubt about the presence of the witnesses at the place of occurrence. The mode and way the appellants and co-accused caused the injuries mentioned in the written application for registration of a case (Ex. PA) and private complaint (Ex. PF) and in the depositions of the prosecution witnesses are changed to bring the ocular account in line with the medical evidence.

1. At the cost of repetition, Muhammad Yaseen (PW-2), the eye-witness, deposed during cross-examination, where he resided at Saidpur. For CNIC, his address has been mentioned as "Bhagiana." Whereas Haji Akbar Ali (PW-1)-the complainant, deposed during cross-examination that: -

"Yasin PW was not a cultivator he had come there for plowing my fields at the time of occurrence. I myself called Yasin for plowing the fields from Bhagiana. I had no knowledge about any Khasra Gardawri of the cultivation of Yasin in his village Bhagiana. Volunteer that he is owner of one/two acres in that village. It is correct that he is resident of village Bhagiana. Volunteer that his brought up was done in this village Bhagiana."

Admittedly, Muhammad Yaseen (PW-2) is a chance witness, and conflict between the statements of Haji Akbar Ali (PW-1)-the complainant, and Muhammad Yaseen (PW-2)-the eye-witness, creates doubt about the presence of Muhammad Yaseen (PW-2) at the place of occurrence at the time of occurrence.

1. There is another aspect of the case that also makes the prosecution's case doubtful. Haji Akbar Ali (PW-1)-the complainant deposed during examination in chief that: -

"While leaving dead body at DHQ, Hospital, Kasur, I went to Police Station Khudian where I submitted application for registration of FIR Ex.PA duly thumb marked by me."

Whereas, during cross-examination, Haji Akbar Ali (PW-1)-the complainant, deposed that: -

"I myself got drafted application for registration of FIR from the computer which was available at the police station. It is not in my knowledge that whether the said application was drafted any Hawaldar or operator, however, he was in uniform in the police station. The application for registration of FIR was drafted on computer at about 05:00 pm. I did not sustain any injury. I have not learnt by heart the FIR. ----------------------One Moonchi was sitting in the police station at that time. It is correct that I informed him that my son has been murdered. At that time I did not submit any application or thumb mark the application. I did not apprised him the details of the occurrence as we were rushing towards the hospital for the treatment of injured Yaseen. The Moonchi sent a constable along with the injured, the Moonchi might have jotted down some paper. The name of the constable who accompanied the injured is not remember to me. ------------------------- I got written application Ex.PA in P.S. Khudian which was computer generated. Same was composed by a police official. I cannot tell the designation of that police official. I cannot distinguish between the ranks of ASI, S.I, Inspector and constable. It was 05:00 pm when Ex.PA was got composed. It is correct that there is a delay of duration of seven hours in preparation of Ex.PA. Volunteer since my son was injured as the delay was caused."

The prosecution failed to explain the delay in reporting the incident and what the complainant did for 07 hours. This aspect of the matter is sufficient to cast doubt about the authenticity of the FIR. This creates serious doubt about the genuineness of the prosecution story, including the complainant's presence at the scene of the occurrence. Delays in lodging the FIR often result in embellishment, a creature of an afterthought.

1. As far as recovery of the weapon of offence, i.e., rifle 223-bore (P-9) along with three live bullets (P-10/1-3) on the pointing of Abid Ali (the appellant No.1), on 30.03.2018 and rifle 7-mm (P-11) on the pointing of Tariq Ali (the appellant No.2), on 04.04.2018 and positive report of Punjab Forensic Science Agency (Ex. PT/1-2) is concerned, as per the prosecution case, on 20.03.2018, the appellants, Abid Ali and Tariq Ali were arrested. Upon the disclosure of the appellant-Abid Ali, on 30.03.2018, rifle 223-bore (P-9) along with three live bullets (P-10/1-3) were recovered by Tahir Sohail, Ex-S.I. (CW-8)-the investigating officer who secured the same into possession through a recovery memo. (Ex. PM). On 04.04.2018, Tariq Ali (appellant No.2) got recovered a 7-mm rifle (P-11), which Tahir Sohail, Ex-SI, (CW-8)-the investigating officer secured through recovery memo. (Ex. PO). Both the recovery memos. were attested by Muhammad Nawaz (PW-3) and Muhammad Sadiq. Tahir Sohail Ex-S.I. (CW-8)-the investigating officer deposed during examination in chief that: -

"On 20.03.2018 I arrested accused Abid and Tariq and recorded their versions. -------------------On 30.03.2018 I interrogated accused Tariq and Abid and accused Abid made disclosure that he could recover weapon of offence. I along with other police officials and accused Abid reached at village Saidpur near the house of accused Abid where Sadiq and Muhammad Nawaz met us and joined me in their presence the accused repeated the disclosure about the recovery of weapon of offence. After that accused Abid led us to his house and entered in his residence room and got recovered rifle P9 along with three live bullets P10/1-3 from the iron box which was lying with eastern wall of the room and made it into a sealed parcel and took the same into possession vide recovery memo. Ex.PN attested by PWs. --------------------------On return to police station I handed over case property to the Moharar and locked the accused in police lockup."

As per prosecution evidence, Tahir Sohail Ex-S.I. (CW-8)-the investigating officer handed the recovered weapons to Muhammad Afzal 1027/C (CW-2) on 30.03.2018. Whereas Muhammad Afzal 1027/C (CW-2)-Moharrar deposed during examination in chief that: -

"On 04.04.2018 Tahir Suhail S.I handed over to me two parcels of Rifle. On 12.04.2018, I handed over the said parcel to Muhammad Serwar ASI for depositing the same in the office of PFSA, Lahore."

As per the Firearms and Toolmarks Examination Report (Ex. PT/1-2), the weapon recovered from the appellant-Abid Ali, matched the crime empties concerned; the prosecution was bound to prove safe custody of the sealed parcels of the recovered rifle 223-bore (P-9) along with three live bullets (P-10/1-3) from the appellant-Abid Ali, on 30.03.2018. After scrutinizing the material on the record, we concluded that the prosecution had not established safe custody of the recovered rifle 223-bore (P-9), along with three live bullets (P-10/1-3). There are contradictions in the case of the prosecution as to the safe custody of the parcels of the recovered rifle 223-bore (P-9), along with three live bullets (P-10/1-3). Muhammad Afzal 1027/C (CW-2)-moharrar has deposed that the rifle 223-bore (P-9), along with three live bullets (P-10/1-3), were handed over to him on 30.03.2018 rather than handed over to him on 04.04.2018. The testimony of Muhammad Afzal 1027/C (CW-2)-moharrar is crucial. Tahir Sohail Ex-S.I. (CW-8)-the investigating officer deposed during cross-examination that: -

"On return to police station I handed over case property to the Moharar and locked the accused in police lockup."

Muhammad Afzal 1027/C (CW-2)-moharrar, deposed during cross-examination that: -

"On 04.04.2018 Tahir Suhail S.I handed over to me two parcels of Rifle. On 12.04.2018 I handed over the said parcel to Muhammad Serwar ASI for depositing the same in the office of PFSA, Lahore."

It is not merely a minor lapse, but there is a very strong suspicion about the entire prosecution story. The Firearms and Toolmarks Examination Report (Ex. PT/1-2) reveals that the rifle 223-bore (P-9) submitted on 12.04.2018 matched the crime empties submitted on 23.02.2018. In the facts and circumstances mentioned above, the possibility of tampering the recovered rifle 223-bore (P-9) cannot be ruled out. The prosecution must prove its case beyond a reasonable doubt, and suspicion cannot replace proof. There are too many shortcomings in the prosecution's evidence. The court must examine the evidence from the starting point and reach a reasoned conclusion, considering the legal principles. The prosecution failed to establish that the rifle 223-bore (P-9), along with three live bullets (P-10/1-3), was kept in safe custody. We believe the inconsistencies and contradictions, considered cumulatively, lead to irresistible influence, and the prosecution has not been able to prove safe custody of the recovered rifle 223-bore (P-9) through material and cogent evidence. This lapse on the prosecution's part went to the case's root. Besides, Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: -

"Tariq and Abid were arrested after the 5/7 days of the occurrence. Again said perhaps they had been arrested after 10 days of the occurrence."

Muhammad Yaseen (PW-2)-the eye-witness deposed during cross-examination that: -

"After about 15 days I had seen the accused persons in the police lock up."

As per the prosecution version, the occurrence took place on 10.02.2018, and if both the appellants were taken into custody by the investigating officer after 10/15 days of the occurrence, it becomes 20/25.02.2018, which creates doubt about the entire proceedings of the recoveries of weapons of offence. So, the positive report of the Punjab Forensic Science Agency (Ex. PT/1-2) is of no consequence to the prosecution.

1. From the above-detailed discussion, we are convinced that the prosecution has failed to establish its case. The truth was seen buried under the debris, and a different story was structured perhaps to lug the appellants into trial under the serious offense. It is often said "that Fouler the crime higher the decree of proof." We have gone through the process of keen examination of the entire material and found compelling reasons, as stated above, to disagree with the conclusion recorded by the learned Additional Sessions Judge also found that the prosecution had miserably failed to prove the guilt of the accused/appellants beyond reasonable doubt. Per the dictates of the law, the benefit of every doubt is to be extended in favor of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it is held as under: -

2025 P Cr. L J 447

[Lahore]

Before Tariq Saleem Sheikh, J

Shahzad---Petitioner

Versus

Ex-Officio Justice of Peace and 3 others---Respondents

Writ Petition No. 80439 of 2021, decided on 29th June, 2022.

Criminal Procedure Code (V of 1898)---

---- Ss. 22A & 22B--- Civil Procedure Code (V of 1908), S.11---Ex-officio Justice of Peace, proceedings before---Principle of res-judicata--- Applicability--- Petitioner was aggrieved of dismissal of his complaint by Ex-officio Justice of Peace on the principle of res judicata--- Validity--- Principle of res judicata postulates that when parties have litigated a claim before a court of competent jurisdiction and it has finally decided the controversy, interest of State and of parties requires that validity of such claim and matters directly and substantially in issue in the action should not be litigated again by them or their representatives--- Ex-officio Justice of Peace exercised quasi-judicial functions under S.22-A(6) Cr.P.C., and principle of res judicata was applied to applications made to him seeking direction to officer in-charge of a police station to register FIR under S.154 Cr.P.C.--- Such principle did not bar institution of a private complaint as it was an independent statutory remedy--- High Court declined to interfere in order passed by Ex-officio Justice of Peace as the same was based on correct application of law--- Constitutional petition was dismissed accordingly.

Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lahore 470; PLD 2003 Supplement Fed. St. 1044; Younas Abbas and others v. Additiional Sessions Judge, Chakwal and others PLD 2016 SC 581; Commissioner v. Sunnen, 33 U.S. 591 (1948), Sulochana Amma v. Narayanan Nair AIR 1994 SC 152; (1967) 69 W Va L Rev 244; Halsbury's Laws of India (2014), Vol. 7, P. 105; Ralph Freddolino v. Village of Warwick Zoning Board of Appeals et. al., 192 A.D.2d 839 (1993); Hilltop Terrace Homeowner's Association et. al. v. Island County et. al., 126 Wn.2d 22 (1995); County of Wayne v. City of Detroit, 590 N.W.2d 619 (1998) and James A. Bagnola v. Smithkline Beecham Clinical Laboratories and City of Chicago, a Municipal Corporation, 776 N.E.2d 730 (2002) rel.

Mahboob Saeed Khokhar for Petitioner.

Mukhtar Ahmed Ranjha, Assistant Advocate General for Respondent No. 2.

Kashif Alexander Rajpoot, assisted by Ms. Nadia Hameed for Respondent No. 3.

Respondent No. 4 in person.

Date of hearing: 30th March, 2022.

Judgment

Tariq Saleem Sheikh, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), is directed against order dated 29.11.2021 passed by the Ex-officio Justice of Peace, Toba Tek Singh.

The factual background

1. The Petitioner and Respondents Nos. 3 and 4 are Christian by faith. On 09.10.2021 the Petitioner moved an application under section 22-A Cr.P.C. stating that in the year 2011 he married Respondent No.3 and two children were born to them. In 2015 the lady left him and went to her parents' house along with the siblings and refused to come back despite his best efforts. Lately he learnt that Respondent No.3 had contracted second marriage with Respondent No.4 without getting divorce from him. The Petitioner contended that Respondents Nos. 3 and 4 had committed a cognizable offence and prayed that a direction be issued to the Respondent SHO for registration of FIR against them. The Ex-officio Justice of Peace dismissed the said application vide order dated 29.11.2021 on the ground that it was not maintainable as his earlier application on the same facts had been dismissed by the Ex-officio Justice of Peace, Faisalabad. Hence, this petition.

The submissions

1. The Petitioner contends that Respondents Nos. 3 and 4 have committed a cognizable offence so the Respondent SHO is obligated to register FIR against them forthwith. He further contends that he cannot be non-suited for the mere reason that he moved an application under section 22-A Cr.P.C. on the same facts earlier. He argues that the impugned order dated 29.11.2021 is perverse and not sustainable.

2. The Assistant Advocate General contends that the Petitioner's first application under section 22-A Cr.P.C. was dismissed on merits. He did not challenge the dismissal order before any forum so it has attained finality and he is precluded from filing new application.

3. Respondent No.3 has supported the impugned order and argues that the Petitioner has filed the above-mentioned application under section 22-A Cr.P.C. to harass her as she has obtained a decree for maintenance against him. She further alleges that he has committed polygamy himself which is forbidden in Christianity and an offence under the laws of Pakistan. Hence, he is liable to be prosecuted.

4. Respondent No.4 has also termed the proceedings initiated by the Petitioner as mala fide and vexatious.

Discussion

1. In the Indo-Pak sub-continent the original role of the Justice of Peace under the Code of Criminal Procedure, 1898 (the "Code" or "Cr.P.C."), was primarily to assist the police in maintaining public order and peace and, in the event of infarction of law, to help apprehend the culprit and investigate the crime. However, his role was subsequently enlarged and made more comprehensive through various amendments in the Code. On 21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002) added subsection (6) in section 22-A Cr.P.C. and conferred additional powers on the Ex-officio Justices of Peace. The said provision reads as under:

(6) An Ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

(i) non-registration of criminal case;

(ii) transfer of investigation from one police officer to another; and

(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.

Section 25 Cr.P.C. defines Ex-officio Justice of Peace as follows:

25. Ex-officio Justice of the Peace.- By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving.

1. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) a larger Bench of the Hon'ble Supreme Court of Pakistan considered sections 22-A and 25 Cr.P.C. and ruled as under:

(i) Sections 22-A(6) and 25 Cr.P.C. are not ultra vires the Constitution.

(ii) The functions of the Justice of Peace under subsections (1) to (5) of section 22-A and section 22-B Cr.P.C. are executive, administrative, preventive and ministerial. However, those of the Ex-officio Justices of Peace under section 22-A(6) Cr.P.C. are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment.

(iii) Traditionally it is the prerogative of the High Court to issue a writ. Our Constitution of 1973 also recognizes it but the legislature has lately conferred some powers on the Ex-officio Justice of Peace to provide remedy to the aggrieved people at their doorstep. The parameters laid down for the High Court for the exercise of that jurisdiction would apply to the Ex-officio Justice of Peace with the same force.

1. Admittedly, the Petitioner previously moved an application before the Ex-officio Justice of Peace, Faisalabad, under section 22-A Cr.P.C. for registration of FIR against Respondents Nos. 3 and 4 on the same facts which was dismissed vide order dated 22.09.2020 after hearing both the sides. The foremost question that requires consideration is whether second application is maintainable. In other words, whether the principle of res judicata applies to the proceedings under section 22-A(6) Cr.P.C.

2. The principle of res judicata is based on two legal maxims - "interest reipublicae ut sit finis litium", and "nemo debet bis vexari pro eadem causa". Corpus Juris Secundum, Volume 50 (Edition 2009) states: "The term 'res judicata' is sometimes used in a broad or generic sense to encompass or describe a group of related concepts concerning the conclusive effect of a final judgment. Used thusly, the term has been stated to encompass merger, bar and collateral estoppel, or claim and issue preclusion. So as to exclude issue preclusion, or collateral estoppel, res judicata is sometimes used in a narrow sense. In this context, res judicata is sometimes defined as, considered to be synonymous with, claim preclusion, and many courts treat the two concepts as interchangeable, as by using the phrase 'res judicata' or 'claim preclusion'."

3. The principle of res judicata postulates that when the parties have litigated a claim before a court of competent jurisdiction and it has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and the matters directly and substantially in issue in the action shall not be litigated again by them or their representatives. In Commissioner v. Sunnen, 33 U.S. 591 (1948), the U.S. Supreme Court stated:

"The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' Cromwell v. County of Sac, 94 U.S. 351, 352. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, 'Res Judicata,' 38 Yale L.J. 299; Restatement of the Law of Judgments, § § 47, 48."

1. The question as to whether the doctrine of res judicata is applicable to administrative determinations is quite contentious. Some authorities hold that it is completely inapplicable because the administrative procedures are often summary in nature, the parties are sometimes unrepresented and the dealing officers lack the training that the judges have for adjudication of disputes. The other set of legal experts opine that it depends on the legislative policy. However, the more recent view is that the applicability of the doctrine depends on the nature of the administrative tribunal involved, generally being applied where the function of the administrative agency is judicial or quasi-judicial. Halsbury's Laws of India explains:

"Although the Code of Civil Procedure 1908 does not apply to proceedings other than suits, the general principles of res judicata govern not only the findings of courts, stricto sensu, but also the findings of administrative tribunals and quasi-judicial authorities which are acting in judicial or quasi-judicial capacity. Thus, the plea of res judicata is available in respect of decisions of courts of exclusive jurisdiction as also decisions rendered by other adjudicating authorities. The rule, however, does not apply to administrative decisions, for example the policy matters of the government. The power to change, adjust or readjust policy is untrammelled."

1. In Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152) the Supreme Court of India held that the doctrine of res judicata is based on public policy and applies to all judicial proceedings, whether civil or otherwise, and to the quasi-judicial proceedings of the tribunals other than the civil courts. Accordingly, in A.K. Muthuswamy v. Securities Exchange Board of India the Madras High Court held that the Board was not competent to entertain second complaint on the same cause of action as it exercises quasi-judicial functions. Further, it could not treat that complaint even as a review petition because the statute did not confer such power on it.

2. The principle of res judicata is applied to quasi-judicial proceedings in other jurisdictions as well. In The State Ex Rel. Schachter v. Ohio Public Employees Retirement Board et. al., 121 Ohio St.3d 526 (2009), the Supreme Court of Ohio held:

2025 P Cr. L J 460

[Lahore]

Before Muhammad Amjad Rafiq, J

Zahid Maqsood Butt---Petitioner

Versus

The State and others---Respondents

Criminal Misellaneous No. 3568-M of 2024, decided on 7th June, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249---Penal Code (XLV of 1860), S. 408---Civil Proccedure Code (V of 1908), S. 11---Constitution of Pakistan, Art.13---Criminal breach of trust by clerk or servant---Pendency of criminal and civil proceedings---Discretion of staying of proceedings in the criminal trial by the revisional court---Scope---'Res judicata' and 'double jeopardy' applicability of---Application for staying the criminal proceedings filed by the accused/respondent was dismissed by the Trial Court, however, the same was allowed by the revisional court---Contention of the petitioner/complainant was that although S.249, Cr.P.C., empowered the Magistrate to stop the proceedings, but guidelines were not available as to when, where and in what situation it could be invoked---Validity---Civil and criminal proceedings can go side by side provided subject matter before civil Court and criminal Court is the same and is required to be determined by civil Court first being Court of ultimate jurisdiction---Connotation "same subject matter" does not mean only a fact in issue relating to such subject but the subject matter as a whole---In the criminal litigation subject matter was 'misappropriation of amount' whether as an employee or partner whereas in civil litigation matter was of 'entitlement of amount'---Law does not permit any person to acquire disputed amount through misappropriation and if it is permitted, this would open an absurd practice of taking the law into one's own hands, giving an air to a mechanism of private vengeance parallel to constitutional arrangement for judicial system of the country---Decision of a criminal Court does not affect any question pending in civil Court between same parties because the outcomes and standard of proof in both proceedings are different, i.e., 'preponderance of evidence' in civil cases and 'proof beyond reasonable doubt' in criminal cases, thus, neither the principle of res-judicata nor principle of double jeopardy is applied in any manner---When the evidence was complete and case was fixed for final arguments, the revisional Court should have directed the Trial Court for decision of case on merits because if the fact in issue 'criminal breach of trust by an employee' was not proved, then court could see under Ss. 237/238, Cr.P.C., as to what offence had in fact been committed, or at the most could acquit the accused but not to stop the proceedings under S. 249 of Cr.P.C., which was meant for a situation when evidence on record was not sufficient to convict the offender but Court expects a later progress or development into the matter--- Discretion to stay the proceedings had not been exercised by the Trial Court---Revisional Court had also not discussed in its order the contours of order of Trial Court so as to override or supersede the discretion exercised by the Magistrate---Section 249 Cr.P.C. authorizes the Magistrate to stop the criminal proceeding, at any stage, initiated through any mode except through private complaint, without pronouncing the judgment either of acquittal or conviction and then release the accused---Order passed by Magistrate under S.249, Cr.P.C., was required to be backed by reasons which makes it a judicial order, amenable to revisional jurisdiction; however, it does not seek execution of bond by the accused conditional to his release---Bond is executed by the accused as an assurance to appear before the Court but when he does not remain in the process any more, execution of bond is not required---Section 249, of Cr.P.C., could not be thought of as a remedy available to order for stay of criminal proceedings because firstly, if the proceedings were pending through a private complaint, rescue under this section was not available; secondly, not requiring a bond for release of accused was an indicator that a novel situation had arisen in the proceedings which required a sine die adjournment of case without a time-bound schedule---Thus, 'to stop the proceeding' stood distinguished from 'stay of proceedings' and 'stay of prosecution'---Stay of proceedings was done to meet the situation when further proceeding was conditional to an order to be made by other Court, the higher Court or by the government---Criminal miscellaneous was allowed, in circumstances.

Muhammad Akbar v. (1) The State and (2) Maulvi Muhammad Yasin Khan PLD 1968 SC 281; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Riaz-Ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others 2000 SCMR 991; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Sheraz Ahmad and others v. Fayyaz-Ud-Din and others 2005 SCMR 1599; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835 and 1995 SCMR 1621 distinguished.

Tariq Irshad v. Special Judge and others 2022 PCr.LJ 1050; Rasoolan Bibi v. The State Writ Petition No. 82843 of 2023; The State through Prosecutor General Sindh v. Shahzad Riaz and others 2021 PCr.LJ 656; Gulan v. The State and 2 others 2015 YLR 190; S. Masoodul Hassan Naqvi v. The State 1986 PCr.LJ 1272; Muhammad Yamin v. The State 2022 YLR Note 10; Mst. Sardaran Bibi v. The State PLD 1990 Karachi 233; Gulan v. The State and 2 others 2015 YLR 190; Muhammad Shafi v. Additional Sessions Judge, Kharian District Gujrat and 8 others PLD 2011 Lahore 551 and Mst. Shireen Taja v. The State and 2 others 2002 PCr.LJ 159 rel.

Barrister Ahmed Raza Kazim for Petitioner.

Ms. Asmat Parveen, Deputy District Public Prosecutor with Bilal, SI for the State.

S.M. Zeeshan Mirza and Yamna Baig for Respondents.

Date of hearing: 7th June, 2024.

Judgment

Muhammad Amjad Rafiq, J.---Through this Criminal Miscellaneous under Section 561-A of Cr.P.C., petitioner Zahid Maqsood Butt, being complainant of case FIR bearing No.38 dated 02.02.2015 registered under section 408 P.P.C. at Police Station New Anarkali, Lahore has challenged the vires of order dated 20.12.2023 passed by learned Additional Sessions Judge, Lahore whereby a criminal revision filed by respondent No.02 Usman Khalid, accused of above case against the order dated 17.06.2023 passed by learned Magistrate Section-30, Lahore, was accepted and proceedings in criminal trial (case FIR No.38 of 2015) were ordered to be stopped under section 249 of Cr.P.C.

1. Criminal action was initiated against respondent No.02 (the respondent)with the narration that he being manager/employee has misappropriated an amount of Rs. 5 crores, therefore, matter was pending trial on a charge under section 408 P.P.C. when an application was filed by the respondent to stay the criminal proceedings because he was not the employee but the partner of the petitioner and in this respect the respondent, his brother and mother have filed suit for declaration, cancellation of document, rendition of accounts and recovery etc. titled "Mst. Robina Khalid and others v. Zahid Maqsood Butt" claiming therein an amount of Rs. 9 Crores due against the petitioner. Such application though was dismissed by the trial Court yet allowed by the learned revisional Court with following observations;

"Said suit was instituted on 22.10.2015. Process of criminal litigation and civil litigation continued since 2015 till today side by side. Now in criminal trial complete prosecution evidence has been recorded. Statement of petitioner under section 342 Cr.P.C. is also recorded and the case is fixed for final arguments. Allegation punishable under section 408, P.P.C. depends whether petitioner was an employee of complainant or not, therefore, question of entrustment does not arise. Same question is before civil court. If present case is decided earlier, the same would prejudice civil suit pending between the parties while question regarding status of petitioner as employee or business partner is a civil issue/matter to be decided in civil suit. In para No.6 of plaint of said suit, petitioner has contended that he invested Rs. 45 million as partner in the business of complainant through bank draft of his account deposited in the account of complainant. It is to be proved by the petitioner that amount of Rs. 45 million was transferred from his bank account in the account of complainant. In these circumstances, it is necessary that his civil suit be decided earlier and then the present case be decided."

(Emphasis supplied)

The learned Additional Sessions Judge has passed the impugned order presumably on the strength of case laws cited in the impugned order. Basic judgment was "Muhammad Akbar v. (1) The State And (2) Maulvi Muhammad Yasin Khan" (PLD 1968 SC 281), wherein an FIR was registered for an alleged forcible and dishonest snatching of a bus. Dispute of many buses was already pending trial in a civil suit between the partners due to dissolution of partnership and bus, subject matter of FIR was also included therein. The parties have acquiesced the status of each other in that case; whereas in the present case complainant/petitioner has not conceded the status of accused/respondent as partner, nor brought any suit in this respect; therefore, present case hardly had any identical features. Thus, learned Additional Sessions Judge has wrongly placed reliance on the cited case as well as case laws mentioned in the impugned order.

1. Now coming to the legal position of the case; it is trite that civil and criminal proceedings can go side by side provided subject matter before civil Court and criminal Court is the same and is required to be determined by civil court first being Court of ultimate jurisdiction. Connotation "same subject matter" does not mean only a fact in issue relating to such subject but the subject matter as a whole. In the present criminal litigation subject matter is 'misappropriation of amount' whether as an employee or partner whereas in civil litigation matter is of 'entitlement of amount'. Law does not permit any person to acquire disputed amount through misappropriation. If it is permitted, this would open an absurd practice of taking the law into one's own hands, giving an air to a mechanism of private vengeance parallel to constitutional arrangement for judicial system of the country. Even in civil jurisdiction when possession is unlawfully taken from an illegal occupant of land, Court is bound to restore it to man in possession as per section 9 of the Specific Relief Act, 1877; same is the mandate of section 145 of Cr.P.C. Thus, law is very clear on the subject. The observation of learned Additional Sessions Judge that "If present case is decided earlier, the same would prejudice civil suit pending between the parties while question regarding status of petitioner as employee or business partner is a civil issue/matter to be decided in civil suit" shows his lack of knowledge on the subject. It is settled principle of law that decision of a criminal Court does not affect any question pending in civil Court between same parties because the outcomes and standard of proof in both proceedings are different, i.e., 'preponderance of evidence' in civil cases and 'proof beyond reasonable doubt' in criminal cases. Thus, neither the principle of Res-judicata nor principle of Double jeopardy is applied in any manner. Case reported as "Tariq Irshad v. Special Judge and others" (2022 PCr.LJ 1050), and case approved for reporting as "Rasoolan Bibi v. The State and others" (Writ Petition No. 82843 of 2023) decided on 14.05.2024 are referred in this respect.

2. Learned Counsel for the petitioner while referring cases reported as "The State through Prosecutor General Sindh v. Shahzad Riaz and others" (2021 PCr.LJ 656), "Gulan v. The State and 2 others" (2015 YLR 190), "S. Masoodul Hassan Naqvi v. The State" (1986 PCr.LJ 1272) urged that when the evidence was complete and case was fixed for final arguments, the learned Revisional Court should have directed the trial Court for decision of case on merits because if the fact in issue 'criminal breach of trust by an employee' is not proved, then Court can see under sections 237/238 of the Code of Criminal Procedure, 1898 (Cr.P.C.) as to what offence has in fact been committed, or at the most can acquit the accused but not to stop the proceedings under section 249 of Cr.P.C., which is meant for a situation when evidence on record is not sufficient to convict the offender but Court expects a later progress or development into the matter. Learned Deputy District Public Prosecutor also supported the above contention. However, learned Counsel for the respondent defended the impugned order on the ground that it is discretionary with the Court to order for stay of proceedings which cannot be interfered, and in this respect placed reliance on reported cases referred in the impugned order as "Muhammad Akbar v. (1) The State And (2) Maulvi Muhammad Yasin Khan" (PLD 1968 SC 281), "Muhammad Tufail v. The State and another" (1979 SCMR 437), "Abdul Haleem v. The State and others" (1982 SCMR 988), "Riaz-Ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pind Dadan Khan and 2 others" (2000 SCMR 991), "A. Habib Ahmed v. M.K.G. Scott Christian and 5 others" (PLD 1992 SC 353), "Sheraz Ahmad and others v. Fayyaz-Ud-Din and others" (2005 SCMR 1599), "Abdul Ahad v. Amjad Ali and others" (PLD 2006 SC 771), "Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others" (2010 SCMR 1835). The learned Counsel for the respondent however conceded that such discretion has not been exercised by the learned trial Court. It has been observed that the learned Additional Sessions Judge has also not discussed in the impugned order the contours of order of trial Court so as to override or supersede the discretion exercised by the Magistrate. The cited judgments were examined carefully which hardly apply on the facts of present case. Gist of such judgments has been referred in later part of this order to show in what situations the criminal proceedings can be stayed. However, in following two judgments from above cluster, Supreme Court has declined to order for stay of criminal proceedings; they are as under;

Petitioner obtained an amount of Rs. 83,000/- for sending the respondent abroad and issued a receipt in this respect. Petitioner claimed such receipt as forged and sought stay of criminal proceedings, which request was turned down even by the Supreme Court. (1995 SCMR 1621).

An agreement to sell for a landed property between Bahawal Khan and Sharif Hussain was brought before civil court against the legal heirs of Sharif Hussain for specific performance and legal heir got lodged criminal case against Bahawal Khan for forgery. Quashing and stay of criminal proceedings were refused up to the Supreme Court. (1979 SCMR 437).

1. Learned counsel for the petitioner urged that section 249 Cr.P.C. though empowers the Magistrate to stop the proceedings but guidelines are not available as to when, where and in what situations it can be invoked. It was attended accordingly, reading of section and relevant provisions of Cr.P.C. coupled with examining of relevant case laws, contours of section 249 Cr.P.C. needs to be looked again. For the sake of reference section is reproduced;

249. Power to stop proceeding when no complaint: In any case instituted otherwise than upon complaint, a Magistrate of the First Class, or with the previous-sanction of the Sessions Judge, any other Magistrate may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction; and may thereupon release the accused.

This section authorizes the Magistrate to stop the criminal proceeding, at any stage, initiated through any mode except through private complaint, without pronouncing the judgment either of acquittal or conviction and then release the accused. Order passed by Magistrate under this section is required to be backed by reasons which makes it a judicial order, amenable to revisional jurisdiction; however, it does not seek execution of bond by the accused conditional to his release. This connotation is very strong because wherever in Cr.P.C. the word 'release' appears it is made conditional to executing a bond or sufficient security. Sections 57(2), 124(6), 173, 426, 435, 466, 496 and 497 of Cr.P.C., are referred in this respect. Whereas like section 249 of Cr.P.C., sections 59(3) and 124(1) Cr.P.C., also talk about a simple release without executing a bond or providing sufficient security. Bond is executed by the accused as an assurance to appear before the Court but when he does not remain in the process any more, execution of bond is not required. Cases reported as "S. Masoodul Hassan Naqvi v. The State" (1986 PCr.LJ 1272); "Muhammad Yamin v. The State" (2022 YLR Note 10); "Mst. Sardaran Bibi v. The State" (PLD 1990 Karachi 233), are referred in this respect.

1. Section 249 of Cr.P.C., cannot be think of a remedy available to order for stay of criminal proceedings because firstly, if the proceedings are pending through a private complaint, rescue under this section is not available; secondly, not requiring a bond for release of accused is an indicator that a novel situation has arisen in the proceedings which require a sine die adjournment of case without a time-bound schedule. Case reported as "Gulan v. The State and 2 others" (2015 YLR 190), is referred in this respect. Thus, 'to stop the proceeding' stands distinguished to 'stay of proceedings' and 'stay of prosecution'. Stay of proceedings is done to meet the situation when further proceeding is conditional to an order to be made by other Court, the higher Court or by the government. Instances are like as under;

1. Where any person denies the existence of public right pursuant to an order made by magistrate for removal of nuisance and magistrate considers that there is reliable evidence of such denial, he shall stay the proceeding until the matter of the existence of such right has been decided by a competent Civil Court. (Section 139-A Cr.P.C.).

2. On information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries, Magistrate after inquiry can pass an order in favour of the party but if later finds that no such dispute exist, he shall stay the proceedings. (Section 145(5) of Cr.P.C.).

3. Stay of proceedings if prosecution of offence in altered charge requires previous sanction (Section 230 of Cr.P.C.).

4. When during the course of an inquiry or trial, it appears to a magistrate that case is one which should be tried or sent for trial to the Court of Session or the High Court or by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to the Sessions Judge or to such other Magistrate, having jurisdiction, as the Sessions Judge, directs. (Section 346 Cr.P.C.)

5. If any party intends and intimates the Court for filing of a transfer application of case, though it shall not require the Court to adjourn the case, but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court. Section 526 (8) Cr.P.C.

6. Any matter pending before higher Court with an injunctive order as not to pronounce final judgment.

7. Matter for witness protection is pending with government under Witness Protection Act, 2018.

8. Stay of criminal proceedings due to pending matter in any other Court conditional to further proceedings.

1. Though there is no express provision in Cr.P.C., for stay of criminal proceedings on the ground that subject matter is pending determination before civil Court yet there is no specific prohibition in this respect. Therefore, trial Court is competent to stay criminal proceedings as held in case reported as "Muhammad Akbar v. (1) The State And (2) Maulvi Muhammad Yasin Khan" (PLD 1968 SC 281).

2. 'Stay of prosecution' is discontinuation of criminal prosecution on all or any of charges in order to give a go to government decision based on public policy which is regulated through section 10(3)(f) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 which says;

"at any stage of a trial before any trial court subordinate to the High Court before the judgment is passed, the Prosecutor General or any Prosecutor specifically authorized by him, may, for reasons to be recorded in writing, inform the court on behalf of the Government that the Prosecutor shall not prosecute the accused upon the charge and thereupon all proceedings against the accused shall be stayed and he shall be discharged of and from the same:

Provided that such discharge shall not amount to an acquittal unless the court directs otherwise."

The above section is verbatim of section 265-L of Cr.P.C., which empowers the Advocate-General to seek stay of prosecution before the High Court.

Likewise, when an accused is facing a charge containing one or more heads and is convicted in any of them, the rest of the charges can be withdrawn by the prosecution or the Court at its own can stay the inquiry into, or trial of such charges till the conviction attains finality through Court of appeal. (Section 240 Cr.P.C.)

1. From the practice and procedure, it can be summarized that the most suitable situations to stop the proceedings under section 249 Cr.P.C. could be like as under but are not exhaustive;

1) During the trial witnesses of case are reported to have gone abroad, or

2) Whereabouts of witnesses are not known, or

3) Witnesses have become absconders in another case.

4) Sanction for prosecution has not been received to the Court for taking cognizance.

5) Prosecution has recommended the case as not fit for trial in the case review report under section 9(7) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, (the CPS Act 2006) and Court considers that the evidence is forthcoming.

6) On receipt of an interim police report under section 173 of Cr.P.C. when prosecutor examines the reasons assigned for the delay in the completion of investigation and considers the reasons compelling, can request the Court for the postponement of trial as authorized under section 9(6) of the CPS Act, 2006.

Of course, before resorting to stop the proceedings in situations mentioned at serial Nos. 1 to 3, the Court in order to procure the attendance of witnesses shall adopt coercive measures of the nature as mentioned in a case reported as "Muhammad Shafi v. Additional Sessions Judge, Kharian District Gujrat and 8 others" (PLD 2011 Lahore 551). Stoppage of proceedings is always contingent to return of witnesses for revival of situation from the stage it was discontinued. Case reported as "Mst. Shireen Taja v. The State and 2 others" (2002 PCr.LJ 159) is referred in this respect.

1. No settled criterion is available to stay criminal proceedings and it varies from case to case confining to pure discretion of the Court; however, for guidance we have some precedents of Supreme Court which the learned Counsel for the complainant has highlighted and learned judge has made it part of impugned order and are also referred in para-4 of this order; gist of such precedents is as follows;

Forged promissory note for the sale of motor car by father of petitioner was prepared in year 1997 while his father has already died in year 1992. Stay of criminal proceedings. (2010 SCMR 1835).

Civil suit regarding ownership of property had already been filed… proceedings in private complaint stayed. (PLD 2006 Supreme Court 771).

An allottee of disputed quarter entered into agreement to sell with respondent and delivered the possession, both parties filed civil suits. Interim injunction was granted in favour of respondent. Quashing of criminal proceedings by High Court was converted to one stay of criminal proceedings by the Supreme Court. (1999 SCMR 1475).

In order to return overdraft facility availed of, petitioner surrendered his 30% shares in favour of bank but same were sold out to persons dealing in stock market, such criminal misappropriation was brought into notice through criminal action by the petitioner but Special Judge (offences in banks) quashed the criminal proceedings, but Supreme Court converted it into stay of criminal proceedings till decision of civil matter. (PLD 1992 SC 353).

Power of Attorney executed in favour of respondent was misused by him, civil suit was brought for cancellation of said document and criminal action was also initiated for preparation of forged agreement to sell on the basis of said power of attorney. Proceedings quashed by the High Court but stood converted to stay of criminal proceedings by the Supreme Court till the decision of civil suit. (1982 SCMR 988).

Company lodged a complaint of embezzlement against his employee who claimed that he was coerced upon and got documents signed therefore, on the very next day he had brought a civil suit. Criminal proceedings were ordered to be stayed. (2000 SCMR 991).

2025 P Cr. L J 482

[Lahore]

Before Muhammad Tariq Nadeem, J

Imran Haider---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 83203 of 2023, decided on 22nd May, 2024.

(a) Administration of justice---

----If a thing is required to be done in a particular manner, then the same should be done in that very manner and not otherwise.

Manzoor Hussain v. The State and 8 others 2013 PCr.LJ 18; Nasreen Akhtar v. Mian Abbas, SHO and 7 others 2016 PCr.LJ 578; Zahida Parveen alias Gooma and another v. The State and others 2019 PCr.LJ 1491 and Adil Khan v. The State and another 2020 PCr.LJ 729 rel.

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

----Ss. 302, 363, 375-A & 34---Qatl-i-amd, kidnapping, gang rape, common intention---Juvenility, question of---Documentary evidence, reliance upon---Application filed by accused for declaring him juvenile was allowed---Validity---When respondent/accused had produced two authentic documents i.e. Form-B issued by NADRA and Birth Certificate, then said documents should be given preference over the School Leaving Certificate issued by a private school and produced by the petitioner---Question of juvenility should be first decided in the light of documentary evidence and only in the absence of such documents, controversy of age could be resolved through ossification test---Neither the Station House Officer nor the Investigating Officer or Area Magistrate had acted in accordance with law---Mere fact that respondent/accused did not claim himself to be a juvenile during the process of investigation as well as before the Area Magistrate, was not a valid ground to oust him from claiming the relief before the Trial Court at the time of his trial---Record evinced that after framing of charge on 16.10.2023, respondent/accused submitted application before the Trial Court on 02.11.2023 for declaring him juvenile, therefore, the Trial Court was quite competent to entertain and decide the application of accused/respondent---According to birth certificate of accused/respondent, his date of birth was 20.05.2006 which was entered in the record of Union Council on 30.05.2006, i.e. after ten days of his birth---Similarly, his Form-B was issued by NADRA on 03.10.2016 whereas the incident in the present case took place on 26.05.2023---Both the said documents were much prior to the date of occurrence---Furthermore, even if it was presumed that there were contradictory documents qua the age of accused/respondent, i.e. birth certificate, Form-B issued by NADRA in favor of accused/respondent and the school leaving certificate relied upon by petitioner, principle of criminal jurisdiction was that in case where two views relating to the age of accused were possible, the view in favour of the accused was normally to be accepted---Criminal revision was dismissed, in circumstances.

Muhammad Anwar v. Muhammad Sufiyan and another 2009 SCMR 1073; Oam Parkash v. The State of Rajistan and another 2012 SCMR 1400; Sultan Ahmad v. ASJ-I, Mianwali and 2 others PLD 2014 SC 758 and Saleem Khan v. The State and others PLD 2020 SC 356 ref.

Saleem Khan v. The State and others PLD 2020 SC 356; Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 and Muhammad Zubair v. The State 2010 SCMR 182 rel.

Farrukh Gulzar Awan for Petitioner.

Muhammad Moin Ali, Deputy Prosecutor General for the State.

Mehram Ali Bali and Fahad Javed Qureshi for the Complainant.

Date of hearing: 22nd May, 2024.

Judgment

Muhamamd Tariq Nadeem, J.---Through this criminal revision filed under Section 436 read with Section 439 Cr.P.C. the petitioner has challenged the order dated 30.11.2023 passed by learned Additional Sessions Judge, Shorkot, District Jhang, whereby an application filed by Muhammad Hussain (respondent No. 2) for declaring him juvenile in case FIR No.189 dated 27.05.2023, for an offence under section 363 P.P.C. (later on sections 302, 375-A and 34 P.P.C. were also added during the course of investigation), registered at Police Station Shorkot Cantt. District Jhang, was allowed and he was declared a 'Juvenile' for the purpose of his trial in the above-mentioned case.

1. The synopsis of the case gleaned out from the crime report are that Imran Haider petitioner was resident of Chak No.5 Ghagh, Tehsil Shorkot, District Jhang, and shopkeeper by profession. On 26.05.2023 at about 07.00 p.m. when petitioner's son namely Hassan Raza, aged about 14 years, went outside the house after changing clothes, Muhammad Husnain respondent No. 2 and his co-accused forcibly took him on motorcycle and when his son did not come back, he became worried. The PWs namely Muhammad Husnain and Abid Ali told the complainant that his son was kidnapped by Muhammad Hussain respondent No. 2 and his co-accused Asim Ali. The petitioner further maintained in crime report that his son be recovered after arresting the accused.

Initially the crime report was lodged against respondent No.2 and his co-accused namely Asim Ali for an offence under section 363 P.P.C.. After the arrest of accused, they pointed out the place of murder of Hassan Raza and subsequently his dead body was also recovered by Rescue 1122 Khanewal. During investigation, respondent No.2 and his co-accused also disclosed and pointed out the place where they committed sodomy with Hassan Raza (deceased). Accordingly, the investigating officer added sections 302, 375-A and 34 P.P.C. in this case.

1. After submission of report under section 173, Cr.P.C. charge was framed by the trial court on 16.10.2023 and thereafter on 02.11.2023, respondent No.2 filed an application for declaring him 'Juvenile' in the aforementioned case which was allowed by the trial court vide impugned order dated 30.11.2023. Hence, this case.

2. It is inter alia contended by learned counsel for the petitioner that the trial court has aired the impugned order on wrong premises of law; that according to School Leaving Certificate issued by the Principal, Khurram Memorial Girls High School (registered), Azadpur, Tehsil Shorkot, District Jhang, the date of birth of respondent No.2 is 01.01.2004, in this way, he was major at the time of occurrence; that Form-B issued by NADRA, wherein the date of birth of respondent No.2 has been shown as 20.05.2006, is not a valid document but the trial court has wrongly relied upon the same; that in the presence of conflicting documents qua the age of respondent No.2, it was the duty of trial court to issue a direction for his ossification test. To embellish his arguments, learned counsel for the petitioner has placed reliance upon the case-laws titled as Muhammad Anwar v. Muhammad Sufiyan and another (2009 SCMR 1073), Oam Parkash v. The State of Rajistan and another (2012 SCMR 1400), Sultan Ahmad v. ASJ-I, Mianwali and 2 others (PLD 2014 SC 758) and Saleem Khan v. The State and others (PLD 2020 Supreme Court 356).

3. Contrarily, learned counsel for respondent No.2 emphatically argued that Form-B issued by NADRA is a public document, wherein the date of birth of respondent No.2 is mentioned as 20.05.2006. Further argued that the School Leaving Certificate produced by the petitioner before the trial court was issued by a private school, therefore, it has no value in the presence of Form-B issued by NADRA.

Similarly, learned Deputy Prosecutor General has submitted that the trial court has passed a well-reasoned and speaking order after applying its sagacious and judicial mind which needs no interference by this Court.

1. I have heard the learned counsel for the parties, anxiously considered their arguments and perused the record with their able assistance.

2. The main thrust of arguments advanced by learned counsel for the petitioner is that there are two conflicting documents qua the date of birth of Muhammad Hussain (respondent No.2), for the reason, it was incumbent upon the trial court to issue a direction for his ossification test. However, I am not in agreement with this contention because conducting the ossification test of an accused for the purpose of determination of his age as a juvenile offender or otherwise was necessary under Section 7 of the Juvenile Justice System Ordinance, 2000 (now repealed), which is reproduced as infra for the purpose of facilitation:-

Section 7 Determination of age.- If a question arises as to whether a person before it is a child for the purposes of this Ordinance, the juvenile court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child.

On 24.05.2018, Juvenile Justice System Act, 2018, was promulgated and Section 8 of the Act ibid deals with the procedure for declaring any accused as juvenile which reads as under:-

8. Determination of age.---(1) Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer-in-charge of the police station or the investigation officer shall make an inquiry to determine the age of such person on the basis of his birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.

(2) When an accused person who physically appears to be a juvenile for the purpose of this Act is brought before a Court under section 167 of the Code, the Court before granting further detention shall record its findings regarding age on the basis of available record including the report submitted by the police or medical examination report by a medical officer.

Besides, Sections 2(b), 2(h), 4(7) and 16 of the Act ibid are also relevant to the facts and circumstances of this case, which are reproduced hereunder:-

2. Definitions.---In this Act, unless there is anything repugnant in the subject or context: -

(a) …………………………………………………………………..

(b) "child" means for the purposes of this Act a person who has not attained the age of eighteen years;

(c) …………………………………………………………………..

(d) …………………………………………………………………..

(e) …………………………………………………………………..

(f) …………………………………………………………………..

(g) …………………………………………………………………..

(h) "juvenile' means, a child who may be dealt with for an offence in a manner which is different from an adult;

4. Juvenile Court.---

(1) …………………………………………………………………..

(2) …………………………………………………………………..

(3) …………………………………………………………………..

(4) …………………………………………………………………..

(5) …………………………………………………………………..

(6) …………………………………………………………………..

(7) If any court taking cognizance of an offence finds that an accused brought before it is a juvenile, it shall transfer his case to the Juvenile Court for further proceedings.

16. Orders that shall not be passed with respect to a juvenile.---(1) No person who was a juvenile offender at the time of commission of an offence shall be awarded punishment of death.

(2) No juvenile offender shall be committed to prison, ordered to labour, put in fetters, handcuffed or given any corporeal punishment at any time while in custody:

Provided that if there is reasonable apprehension of the escape of the juvenile offender from custody who is more than sixteen years of age and involved in heinous offence or he is previously convicted of an offence punishable with imprisonment for life, for reasons to be recorded, he may be handcuffed or put into a solitary confinement in a Juvenile Rehabilitation Centre or observation home for a period not exceeding twenty-four hours.

A comparative study of the above mentioned provisions of law has made it abundantly clear that in terms of Section 7 of the repealed Juvenile Justice System Ordinance, 2000, medical report qua the determination of age was necessary, but Section 8 of the Juvenile Justice System Act, 2018, contemplates that where an accused physically appears to be a juvenile or he claims himself to be a juvenile, the officer in-charge of the police station or the investigating officer shall make an inquiry for the determination of his age on the basis of birth certificate, educational certificates or any other pertinent documents and in the absence of such documents, age of accused should be determined on the basis of his medical examination vice versa when an accused, who appears to be a juvenile, is brought before a court under section 167, Cr.P.C. the court before granting his further detention shall record its findings regarding his age on the basis of available record submitted by the police or medical examination report. It may not be out of place to mention here that investigating officer has written the age of respondent No. 2 in the certificate of identification annexed with report under section 173, Cr.P.C. as 18/19 years but no inquiry was conducted for the determination of his age by the officer in-charge of the police station or the investigating officer as well as by learned Magistrate. In this way, they all have failed to perform their legal obligation in this case. It has been well settled by now that if a thing is required to be done in a particular manner, then the same should be done in that very manner and not otherwise. Wisdom can be derived from the case-laws titled as Manzoor Hussain v. The State and 8 others (2013 PCr.LJ 18), Nasreen Akhtar v. Mian Abbas, SHO and 7 others (2016 PCr.LJ 578), Zahida Parveen alias Gooma and another v. The State and others (2019 PCr.LJ 1491) and Adil Khan v. The State and another (2020 PCr.LJ 729).

1. It is worthwhile noticeable here that in the present case, the petitioner has entirely relied upon a school leaving certificate for determination of age of respondent No.2, but learned counsel for the petitioner could not satisfy this Court that how the school leaving certificate which was got issued from a private school i.e. Khurram Memorial Girls High School Azadpur, Tehsil Shorkot, District Jhang, can be given preference over Form-B, which has been issued by NADRA in favour of respondent No.2 much prior to the happening of incident.

Another important aspect of this case which cannot be lost sight of is that the school leaving certificate produced by learned counsel for the petitioner before the trial court is pertaining to one Muhammad Husnain son of Muhammad Waheed but in the instant case the name of accused is Muhammad Hussain son of Muhammad Waheed. For clarity, this Court vide order dated 20.05.2024 called for the judicial record of the trial court, which has been produced today and after going through the judicial record, it can be easily adjudged that the name of student mentioned in the school leaving certificate is Muhammad Husnain and not Muhammad Hussain (respondent No.2). Another fact which raises a serious question about the authenticity of school leaving certificate is that according to this document, Muhammad Husnain son of Muhammad Waheed got admission in Khurram Memorial Girls High School Azadpur, Tehsil Shorkot, District Jhang, on 29.10.2008 as a student of nursery class and he remained studying there till 31.03.2013 i.e. for a period of four years five months and two days but he could pass only class one during this long span of time.

In the light of above-noted peculiar facts and circumstances of this case, school leaving certificate relied upon by the petitioner for determination of age of respondent No.2 cannot be said to have contradicted Form-B, which is a public document and has been issued in latter's favour by NADRA. Moreso, learned counsel for the petitioner has relied upon the case-law titled as Saleem Khan v. The State and others (PLD 2020 SC 356) wherein the Supreme Court of Pakistan has held that ossification test/medical report should be called only in the absence of documentary evidence or contradiction between the documents. In this way, wisdom laid down by the Supreme Court of Pakistan in the above-referred case also goes against the petitioner.

1. In addition to the above, judicial record of the trial court relating to juvenility depicts that respondent No.2 had also produced his birth certificate issued by Secretary Union Council Ahmad Pur East, District Bahawalpur, along with his Form-B issued by NADRA which both are public documents and in these documents, his date of birth is mentioned as 20.05.2006. I am of the view that medical report was necessary in terms of Section 7 of the repealed Juvenile Justice System Ordinance, 2000, but in Section 8 of the Juvenile Justice System Act, 2018, it has been mentioned that in absence of documentary evidence about the age of accused person, it may be determined on the basis of medical examination report by a medical officer, but when there is documentary evidence pertaining to the age of respondent No.2 then no question arises to send him for ossification test, which even otherwise, normally varies one to two years of the age of examinee. A reference in this respect may be made to the case titled as Intizar Hussain v. Hamza Ameer and others (2017 SCMR 633) wherein the Apex Court of the country has held as under:-

In the light of above mentioned circumstances, I am of the view that in the case in hand when respondent No.2 has produced two authentic documents i.e. Form-B issued by NADRA and Birth Certificate, then these documents should be given preference over the school leaving certificate issued by a private school and produced by the petitioner. The question of juvenility should be firstly decided in the light of documentary evidence and only in the absence of such documents, controversy of age can be resolved through ossification test.

1. Insofar as the contention of learned counsel for the petitioner that respondent No.2 filed application for declaring him a 'Juvenile' at a belated stage and the trial court has ignored this fact is concerned, I am of the considered view that this contention has no force because in this case, neither the Station House Officer nor the Investigating Officer or learned Area Magistrate have acted in accordance with law. Mere fact that respondent No.2 did not claim himself to be a juvenile during the process of investigation as well as before the Area Magistrate, is not a valid ground to oust him from claiming the relief before the trial court at the time of his trial. The record evinces that after framing of charge on 16.10.2023, respondent No.2 submitted application before the trial court on 02.11.2023 for declaring him juvenile, therefore, the trial court was quite competent to entertain and decide the application of respondent No.2. In the case-law tilted as Saleem Khan v. The State and others (PLD 2020 SC 356), the Supreme Court of Pakistan has been pleased to hold as infra:-

"5. The determination of the age or juvenility of the accused under the Juvenile Ordinance was the responsibility of the trial court, requiring the trial court to hold an inquiry including obtaining a medical report for the determination of age. However, this process underwent change under section 8 of the Juvenile Act, wherein if the accused physically appears or claims to be a juvenile, the Police shall make an inquiry to determine the age of the accused on the basis of his birth certificate, educational certificate or any other pertinent document. In the absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer. Therefore, the Police are to determine the juvenility of the accused and thereafter the case is put up before the Juvenile Court for trial. Section 8(2) provides that if the accused physically appears to be a juvenile when brought before a court (of general criminal jurisdiction) under section 167 Cr.P.C the court shall before granting further detention record its finding regarding age of the accused. Section 4(7) of the Juvenile Act provides that a criminal court of general jurisdiction can find the accused to be a juvenile and thereafter transfer the case to the juvenile court for further proceedings. Therefore, in the absence of any inquiry by the Police the determination of age and juvenility of the accused can be determined by the court having taken cognizance of the matter. This is what happened in the instant case, when the court declared the petitioner to be a juvenile on the application of the petitioner.

6. Determination of age of an accused who appears or claims to be a juvenile is, therefore, initially the statutory responsibility of the Police. In the absence of which, the court of general jurisdiction enjoys the power to determine the age of the accused, and if declared to be a juvenile, transfer the case to the concerned Juvenile Court. In the instant case, the Police had not carried out any such exercise and therefore the court on the application of the petitioner issued the required declaration. The determination of age by the court is also a statutory obligation, hence the time spent in obtaining the said finding or declaration by the court cannot possibly be termed as delay caused in the trial by the accused, so as to deprive him of his right to bail on the ground of statutory delay. Any such determination of age by the court is a statutory requirement and forms part of the trial."

1. Learned counsel for the petitioner has not argued on the point that birth certificate or Form-B issued by NADRA and produced by respondent No.2 before the trial court are forged documents. I have observed that according to birth certificate of Muhammad Hussain (respondent No.2) his date of birth is 20.05.2006 which was got entered in the record of Union Council Ahmad Pur East, District Bahawalpur on 30.05.2006, i.e. after ten days of his birth. Similarly, his Form-B was issued by NADRA on 03.10.2016 whereas the incident in the present case took place on 26.05.2023. Both the above mentioned documents are of much prior to the date of occurrence. Furthermore, even if it is presumed that there are contradictory documents qua the age of respondent No.2, i.e. birth certificate, Form-B issued by NADRA in favor of respondent No.2 and the school leaving certificate relied upon by petitioner, famous principle of criminal jurisdiction that in case where two views relating to the age of accused are possible, the view in favour of the accused is normally to be accepted as observed in the case-law reported as Muhammad Zubair v. The State (2010 SCMR 182) comes to rescue the accused/respondent No.2. Relevant lines from the esteemed judgment are reproduced as under for ready reference:-

"Be that as it may, the fact remains that there is a doubt in respect of the age of the appellant because according to him he was about 18 years of age whereas according to the complainant he was 20 years of age at the time of incident. In such a situation, it is to be seen as to whether doubt is to be decided in favour of the accused or the complainant. A similar question was examined by this Court in the case of "Ijaz Hussain v. The State" 2002 SCMR 1455 and it after relying upon the case of "Umar Hayat v. Jahangir 2002 SCMR 629 held that "in case where two views relating to the age of accused are possible, the view in favour of the accused is normally to be accepted. In the case of Sohail Iqbal v. The State 1993 SCMR 2377 it has been held as under:-

2025 P Cr. L J 508

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

Gulraiz Shahzad---Appellant

Versus

The State---Respondent

Criminal Appeal No. 69125-J of 2022 and Murder Reference No. 03 of 2021, decided on 24th, June, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the husband of complainant by inflicting churri blow---Complainant deposed that appellant started quarreling with deceased and the father and mother of the deceased tried to stop the quarrel but the appellant took a knife and gave a blow on the neck of deceased and he became injured---Complainant further deposed that after the occurrence, they took the deceased then injured to the hospital, but on the way to the hospital, he succumbed to the injury---Medical Officer deposed that on 01.08.2019 at 01:20 a.m., he conducted the postmortem examination on the dead body of deceased and found a penetrating incised wound over the front of the left side of the neck above the upper margin (border) of the left clavicle---Death occurred due to the said injury to a major blood vessel and vital organ (lung), leading to haemorrhage shock, cardiopulmonary arrest, and death---Prosecution evidence revealed that the father and mother of the deceased and appellant were present when the Investigating Officer visited hospital, but they did not report the incident---Admitted fact that the deceased had not succumbed to injuries at the spot, but rather, during shifting to the hospital, in injured condition, he succumbed to injuries on the way to the hospital---First Information Report mentioned details regarding the date, time, place, and manner of occurrence, as well as the person who committed the offence and the weapon used in the commission of the crime---Such fact simply facilitated the Investigating Agencies' investigation expeditiously so that they could reach the correct conclusion after the investigation---Appellant did not participate in the last rites of his deceased brother, with whom he had great love and affection---Appellant failed to produce his wife in support of his plea that the complainant had not witnessed the occurrence and was not present at the place of occurrence as she was in her parents' house---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of doubt, however, due to mitigating circumstance, the death sentence of the appellant was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Defence taken by the accused not proved---Accused was charged for committing murder of the husband of complainant by inflicting a churri blow---Appellant took two pleas during the trial, and in his statement recorded under S.342, Cr.P.C., one of his alibi was that he was present at the Head Office of clinic laboratories and second that he was falsely involved in the case by the complainant to grab property (house) of her in-laws---Appellant failed to establish that the complainant, or the deceased had previous enmity over the property (house) owned by the in-laws of the appellant---Neither the appellant brought on the record any proof that his parents were the property owners, which the complainant wanted to grab---There was no evidence on record that the appellant was present at the Head Office of clinic laboratories---In the cross-examination of the complainant, nothing material had come on record that favored the appellant---Appellant had failed to examine himself as a defence witness and the bald averments made by the accused in his defence without any evidence on record to support them could not help the accused to disprove the prosecution evidence---Defence taken by the appellant under S.342, Cr.P.C. was not evidence at all, and it could not be read as part of the evidence---Statement of the accused recorded under S.342, Cr.P.C had to be looked into only as an explanation of incriminating circumstances and not as a piece of evidence---Accused had the option to examine himself as a witness, but when he took a specific defense, he had to prove it---Appellant had not opted to appear in the witness box for cross-examination, nor led any of his evidence, which drew an adverse inference against him and led to the conclusion that the version of the eye-witness/complainant regarding the manner of the accident was correct---Circumstances established that the prosecution had proved its case against the appellant beyond shadow of doubt, however, due to mitigating circumstance, the death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged for committing murder of the husband of complainant by inflicting churri blow---According to the Investigating Officer, he did not send the knife to the Forensic Science Agency as it was not blood-stained---Appellant had been convicted and sentenced to death for the murder of the deceased---In such an eventuality, the same could be considered a mitigating circumstance---Furthermore, though it was mentioned in the crime report/FIR that appellant started quarreling with husband of complainant and when refrained, he became furious/angry and committed the occurrence yet it had not come on the record that what was the dispute about, therefore, immediate cause of occurrence remained shrouded in mystery---Thus, the appellant's death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

Dilawar Hussain v. The State 2013 SCMR 1582 rel.

Maqbool Ahmad Qureshi for Appellant.

Syed Abdul Manan Iftikhar Shah, Advocate (Defence Counsel).

Tariq Siddique, Additional Prosecutor General for the State.

Complainant in person.

Date of hearing: 24th June, 2024.

Judgment

Aalia Neelum, J.---The appellant-Gulraiz Shahzad son of Muhammad Zulfiqar, caste Rajpoot, resident of Meraj Park Kot Abdul Malik, District Sheikhupura, was involved in case FIR No.1087 of 2019, dated 31.07.2019, registered under Section 302, P.P.C., at P.S. Factory Area, District Sheikhupura and was tried by the learned Additional Sessions Judge, Ferozewala. The trial court seized with the matter in terms of the judgment dated 15.12.2020, convicted Gulraiz Shahzad (the appellant) under Section 302(b), P.P.C. as Tazir and sentenced to Death for committing Qatl-e-Amd of Muhammad Waqas Ali (the deceased), with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased as envisaged under section 544-A, of Cr.P.C and in case of default thereof, to undergo 06-months S.I further.

1. Feeling aggrieved by the trial court's judgment, Gulraiz Shahzad, the appellant, has assailed his conviction and sentence by filing the instant jail appeal bearing Criminal Appeal No.69125-J of 2020. The trial court also forwarded M.R. No.03 of 2021 (The State. v. Gulraiz Shehzad) to confirm the death sentence awarded to the appellant-Gulraiz Shahzad. Both the matters arising from the same judgment of the trial court are being disposed of through a single judgment.

2. The prosecution story, as alleged in the FIR (Ex.PF) lodged on the statement (Ex.PC) of Sidra Bibi (PW-4)-the complainant, is that one year prior to the occurrence, complainant (PW-4) got marriage with Muhammad Waqas Ali and lived with her husband along with her father-in-law, namely, Zulfiqar, mother-in-law, namely, Riffat Ara and brother-in-law, namely, Gulraiz Shehzad; that on 31.07.2019 at about 04:00 P.M., complainant (PW-4) was present in her house along with her husband, father-in-law, mother-in-law and Gulraiz Shehzad (Jeth); that Gulraiz started quarrel with Muhammad Waqas Ali, husband of complainant (PW-4), upon which, complainant (PW-4), her father-in-law and mother-in-law tried to stop the quarrel and Gulraiz became furious and took a "churri" and made a blow of churri on the neck of husband of complainant Waqas Ali who became injured; that Gulraiz fled away from the spot while brandishing churri; that they took the injured Muhammad Waqas Ali to Shahdara Hospital, Lahore but Muhammad Waqas Ali succumbed to the injuries on the way.

3. After the incident, the complainant reported the matter to the police through his statement (Ex. PC), and after that, formal FIR (Ex. PF) was chalked out by Jamshed Iqbal A.S.I (PW-7). After registering the case, the investigation was entrusted to Shah Faisal S.I. (PW-8), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 25.01.2020, 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 nine (09) witnesses.

4. The ocular account, in this case, has come out from the statements of Sidra Bibi (PW-4)-the complainant, whereas Dr. Ijaz Ahmad (PW-2), who conducted the postmortem examination of Muhammad Waqas Ali (the deceased) found the following injuries on his person:

INJURIES

A penetrating incised wound 5 x 3 cm over the front of the left side of the neck, 5 cm above the upper margin (border) of the left clavicle.

After conducting an autopsy, the doctor opined that death in this case occurred due to the injury to major blood vessels and vital organs (lungs), leading to hemorrhage, shock, cardiopulmonary arrest, and death.

1. The learned Deputy District Public Prosecutor gave up PWs Zulfiqar and Riffat Bibi as being won over and Adil PW as unnecessary after tendering the Punjab Forensic Science Agency report (Ex.PM) and closed the prosecution evidence.

2. The appellant was also examined in terms of Section 342, Cr.P.C., wherein neither he opted to appear as his own witness in terms of Section 340(2), Cr.P.C. nor to produce defence evidence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition: -

"Complainant and PWs are closely related to each other. They deposed against me just only to blackmail and harass me with a view to grab my property. I have no concern with the alleged occurrence by any means."

1. After evaluating the evidence available on record in light of 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 and sentence in the above terms.

2. We have carefully considered the submissions of the learned counsel for the appellant and learned Additional Prosecutor General and minutely reviewed the evidence on record.

3. After giving our anxious consideration to the facts and circumstances of the case and the evidence on record through which we have been taken, it appears to us that the commission of the crime by the appellant-Gulraiz Shahzad, murdering Muhammad Waqas, his real brother has been established beyond a reasonable doubt. However, Zulfiqar and Riffat Bibi, the father and mother of the appellant in whom presence incident took place, have not supported the prosecution case and have been declared as a hostile witness. The evidence adduced in this case is so clear that it is not difficult to hold that the appellant was guilty of murdering his brother, Muhammad Waqas. In our view, such a finding has been made based on the reliable and clinching evidence adduced in the case, and we find no reason to take a contrary view.

4. The evidence adduced in the case reveals that on 31.07.2019 at about 4:00 p.m., Sidra Bibi (PW-4), the complainant, along with her husband Muhammad Waqas, Zulfiqar and Riffat Bibi, the father and mother of the deceased and Gulraiz Shahzad, the appellant, was present in her house. Sidra Bibi (PW-4), the complainant, deposed that Gulraiz Shahzad, the appellant, started quarreling with Muhammad Waqas (deceased), and Zulfiqar and Riffat Bibi, the father and mother of the deceased, tried to stop the quarrel but the appellant took the knife and gave a blow on the neck of Muhammad Waqas (deceased) and he became injured. Sidra Bibi (PW-4), the complainant, deposed during the examination-in-chief that: -

"Accused Gulraiz Shahzad became furious and took a "Churri" (knife) and made a blow of Churri on the neck of my husband Waqas Ali, who became injured."

Sidra Bibi (PW-4), the complainant, further deposed that after the occurrence, they took Muhammad Waqas (then injured) to the hospital, but on the way to the hospital, he succumbed to the injury. Dr. Ijaz Ahmad (PW-2) deposed that on 01.08.2019 at 01:20 a.m., he conducted the postmortem examination on the dead body of Muhammad Waqas and found a penetrating incised wound over the front of the left side of the neck above the upper margin (border) of the left clavicle. The death occurred due to the said injury to a major blood vessel and vital organ (lung), leading to hemorrhage, shock, cardiopulmonary arrest, and death. Dr. Ijaz Ahmad (PW-2) also deposed the dead body of Muhammad Waqas, brought by Muhammad Yaseen 1432-C (PW-9). Muhammad Yaseen 1432-C (PW-9) deposed during examination-in-chief that: -

"Stated that on 31.07.2019 I was posted at P.S Factory Area. On the same day I joined the investigation of this case. I.O handed over me the dead body of the deceased Waqas Ali along with papers and two witnesses for the purpose of postmortem. I escorted the dead body of the deceased along with witnesses to DHQ hospital Sheikhupura for postmortem."

Shah Faisal SI (PW-8)-investigating officer deposed during examination-in-chief that: -

"I along with other officials reached at Shahdara Hospital where the dead body of the deceased Waqas Ali was present along with complainant and other eye-witnesses namely Zulfiqar and Riffat Ara and seven persons. I took into custody the dead body of the deceased Waqas and prepared injury form Exh.PG, inquest report Exh.PH and application for postmortem Exh.PJ of the dead body of the deceased and sent the dead body of the deceased through Yaseen constable and two witnesses to DHQ hospital Sheikhupura for postmortem."

1. The above-mentioned prosecution evidence reveals that Zulfiqar PW and Riffat Bibi PW, the father and mother of the deceased and appellant, were present when the investigating officer visited Shahdara Hospital, but they did not report the incident. In our social setup, in-laws do not come forward to report the incident to the police when their children are involved. In the present case, one son (Muhammad Waqas) of Zulfiqar PW and Riffat Bibi PW had been murdered, and the other son (Gulraiz Shahzad) was facing a charge of murder. Usually, parents try to save their surviving child. In such a situation, when a woman's husband was killed, and in-laws were not standing by her, it was difficult for a woman to make a timely report of murder to the police. It is an admitted fact that Muhammad Waqas (the deceased) had not succumbed to injuries at the spot, but rather, during shifting to the Hospital, in injured condition, he succumbed to injuries on the way to the hospital. Dr. Ijaz Ahmad (PW-2) deposed during examination-in-chief that the probable duration between injury and death is 1 to 2 hours. Thus, the time of the deceased being alive and dying would be between 5 p.m. and 6 p.m. Sidra Bibi (PW-4), the complainant, deposed during the examination-in-chief that: -

"I submitted application Ex.PC for the registration of FIR in police station Factory Area." Sidra Bibi (PW-4), the complainant, also deposed during the cross-examination that, "Application was written by one present in the police station at about 6/7-PM---We remained present in police station for registration of FIR for one/two hours. Dead body was present in the Shahdara Hospital at the time of drafting the application. The dead body was not taken to police station."

Jamshed Iqbal ASI (PW-7) deposed during examination-in-chief that: -

"Stated that on 31.07.2019, I was posted at P.S Ferozewala as Duty Officer. The complainant submitted written application for registration of FIR upon which I got recorded formal FIR No.1087/19, under section 302, P.P.C. without any addition or deletion on front desk. The FIR Exh.PF bears my signature. I sent the said FIR Exh.PF to Shah Faisal S.I Homicide (Investigation) through Aamir Shehzad 752-C. "

Jamshed Iqbal ASI (PW-7) admitted during cross-examination that when the complainant submitted the application for registration of the case, he was present at the police station. According to the police karwai endorsed at the bottom of the complaint (Ex. PC), it reveals that the FIR (Ex. PF) was chalked at 07:00 p.m. on 31.07.2019 through rapt No. 65. Shah Faisal SI (PW-8)-investigating officer deposed during examination-in-chief that: -

"Stated that on 31.07.2019 at about 07:05 p.m. an application and FIR was received to me through Aamir Shehzad moharrar for investigation." Shah Faisal SI (PW-8)-investigating officer also deposed during cross-examination that, "I was in police station when investigation of this case was entrusted to me at about 07:05 p.m. after entrustment of investigation I directly went to Shahdara hospital instead of place of occurrence. I reached hospital at 07:35 p.m. I remained present in hospital for half hour, thereafter I went to the place of occurrence at about 08:30 p.m. As per routine investigation officer choose to went to place where the dead body is present, therefore, I choose to went after the dead body. I remained present at the place of occurrence for 35/40 minutes I conducted whole the proceedings"

1. The FIR mentions details regarding the date, time, place, and manner of occurrence, as well as the person who committed the offence and the weapon used in the commission of the crime. It simply facilitates the investigating agencies' investigation expeditiously so that they can reach the correct conclusion after the investigation. The series of acts and the proceedings taking place after the occurrence, as discussed above, reveal that the delay appears reasonable and probable and is in coherence with the normal conduct of a human being unless proved otherwise. Sidra Bibi (PW-4), the complainant, deposed during the cross-examination that -

"Accused Gulraiz and deceased Muhammad Waqas were only two brothers. Gulraiz and deceased Waqas has cordial relation. My real sister is also married with the accused."

1. The appellant did not participate in the last rites of his deceased brother, with whom he had great love and affection. The appellant failed to produce his wife in support of his plea that the complainant had not witnessed the occurrence and was not present at the place of occurrence as she was in her parents' house. The appellant took two pleas during the trial, and in his statement recorded under Section 342, Cr.P.C., one of his alibi was that he was present at the head office clinic laboratories, Lahore, and second that he was falsely involved in the case by the complainant (PW-4) to grab property (house) of her in-Laws. The appellant failed to establish that Sidra Bibi (PW-4)- the complainant, or Muhammad Waqas (the deceased) had previous enmity on the property (house) owned by the in-laws of the appellant. Neither the appellant brought on the record any proof that his parents were the property owners, which Sidra Bibi (PW-4)-the complainant, wants to grab. There is no evidence that the appellant was present at the head office clinic laboratories in Lahore. In the cross-examination of Sidra Bibi (PW-4)-the complainant, nothing material has come on record that favors the appellant. The appellant has failed to examine himself as a defence witness, and the bald averments made by the accused in his defence without any evidence on record to support them cannot help the accused disproof the prosecution evidence. The defence taken by the appellant under section 342, Cr.P.C. is not evidence at all, and it cannot be read as part of the evidence. It has to be looked into only as an explanation of incriminating circumstances and not as a piece of evidence. The accused has the option to examine himself as a witness, but when he takes a specific defense, he has to prove it. The appellant had not opted to appear in the witness box for cross-examination, nor lead any of his evidence, which draws an adverse inference against him and leads to the conclusion that the version of the eye-witness/complainant regarding the manner of the accident is correct.

2. The evidence of the eye-witnesses, corroborated by the circumstances arising out of the other materials on record, clearly establishes that the appellant-Gulraiz Shahzad had murdered Muhammad Waqas (the deceased) by inflicting a knife blow on his neck. The injury intentionally caused by the appellant-Gulraiz Shahzad, at the vital part of the deceased, was sufficient in the ordinary course of nature to cause death. Given the above circumstances, we have concluded that the prosecution has proved its case against the appellant- Gulraiz Shahzad, beyond any doubt. However, we have observed the factors that have persuaded us not to uphold the capital sentence of the appellants as, according to Shah Faisal S.I. (PW-8)-the investigating officer admitted that he did not send the knife (P-2) to the PFSA as it was not blood-stained. The appellant has been convicted and sentenced to death for the murder of Muhammad Waqas, the deceased. In such an eventuality, the same can be considered a mitigating circumstance. Furthermore, though it is mentioned in the crime report (FIR/Ex.PF) that appellant started quarreling with husband of complainant and when refrained, he became furious/angry and committed the occurrence yet it has not come on the record that what and why was said dispute, therefore, immediate cause of occurrence remained shrouded in mystery.

2025 P Cr. L J 541

[Lahore]

Before Asjad Javaid Ghural, J

Rai Muhammad Usama---Petitioner

Versus

District Police Officer and others---Respondents

Writ Petition No. 50329-Q of 2024, decided on 8th November, 2024.

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

----S.154---Penal Code (XLV of 1860), S.341---Punjab Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Quashing of FIR---Wrongful restraint and dissemination of rumours etc.---Mens rea, absence of---Petitioner sought quashing of FIR on the grounds that he had been involved mala fidely on political basis, as he along with his companions was celebrating 77th Independence Day of Pakistan and he neither made any speech nor took any action detrimental to the public peace and tranquility, nor the petitioner or his companions wrongly restrained any individual---Validity---High Court found that S.16 of the Punjab Maintenance of Public Order Ordinance, 1960, was not applicable as the FIR lacked details of the alleged slogans and how they caused fear or alarm---Similarly, S.341, P.P.C. (wrongful restraint) was not made out as the FIR only mentioned traffic disruption, not the restraint of any individual---Mens rea was found to be lacking, as the petitioner claimed that he along with his companions was celebrating Independence Day and the prosecution offered no evidence to the contrary---First Information Report suggested that the group dispersed upon seeing police, showing respect for law enforcement agencies---Since the gathering was peaceful and no legal restrictions were in place, the court deemed the FIR a violation of fundamental right to peaceful assembly under Art. 16 of the Constitution---Constitutional petition was allowed and the FIR was quashed, in circumstances.

Mst. Riaz Bibi v. S.H.O Police Station Zahirpir 2002 PCr.LJ 530 rel.

(b) Constitution of Pakistan---

---Art. 199---Quashing of FIR---Constitutional jurisdiction of High Court---Scope---Time and again High Court has shown reluctance in interfering in the ongoing investigation process on cherished principle that the functions of Investigating Agency and judiciary are complementary and not overlapping and the combination of individual liberty with due observance of law and order can only be achieved if both the organs are allowed to function independently, however, this principle cannot be construed as an absolute bar on the power of High Court in quashing of FIR in cases where the Court is satisfied that investigation is launched with mala fide intention, without jurisdiction or there is no likelihood of the conviction of the accused persons.

Anwar Ahmad Khan v. The State 1996 SCMR 24; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008; Muhammad Irshad Khan v. Chairman National Accountability Bureau and 2 others 2007 PCr.LJ 1957 and The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan PLD 1974 SC 151 rel.

Barrister Murad Ali Khan Marwat, Barrister Khadija Siddiqui and Asad Ullah Butt for Petitioner.

Ch. Fiza Ullah, A.A.G. with Zafar, DSP and Khalid Nazir, ASI for Respondents.

Order

Asjad Javaid Ghural, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Rai Muhammad Usama seeks quashing of case FIR No.337/24 dated 13.08.2024, in respect of offence under Section 16 of the Punjab Maintenance of Public Order Ordinance, 1960 (Ordinance) read with Section 341 P.P.C., registered at Police Station, Muhammad Wala District Chiniot.

1. Learned counsels for the petitioner submitted that the impugned FIR is result of mala fide and ulterior motive; that the petitioner and other co-accused were celebrating 77th Independence day of Pakistan and have not taken the law into their hands; that neither the petitioner made any speech nor taken any action detrimental to the public peace and tranquility, as such provision of Section 16 of the Ordinance does not attract; that similarly there is nothing on the record to suggest that the petitioner or his companions wrongly restrained any individual, as such offence under section 341 P.P.C. is not made out; that no permission from the Deputy Commissioner before lodging of the impugned FIR was sought; that mens rea which is essential requirement to constitute an offence is patently missing; that there is no likelihood of conviction of the petitioner and continuation of the trial would be wastage of the precious time of the Court; that the impugned FIR is a result of political victimization and is liable to be quashed.

2. Conversely, learned Law Officer submits that offence under section 16 of the Ordinance is cognizable and non-bailable, as such the complainant was vested with authority to get lodge the impugned FIR; that a number of accused persons including the petitioner blocked the road and chanted slogans which resulted in breach of peace; that due to the act of the petitioner and his companions traffic flow and public order was disturbed as such the complainant, being a police official, rightly lodged the impugned FIR; that the investigation is underway wherein the claim of the petitioner that he has not committed any crime will be determined; that quashing of FIR during process of investigation amounts to hamper and jeopardize the entire investigation process prior to its finalization which is not warranted under the law. In the end, a prayer has been made for dismissal of instant writ petition.

3. I have heard the arguments advanced by the learned counsel for the petitioner, learned Law Officer and gone through the record.

4. By way of this petition the petitioner has invoked extraordinary Constitutional jurisdiction of this Court for quashing of aforementioned impugned FIR. Ordinarily, time and again this Court has shown reluctance in interfering in the ongoing investigating process on the well cherished principle that the functions of Investigating Agency and judiciary are complementary and not overlapping and the combination of individual liberty with due observance of law and order can only be achieved if both the organs are allowed to function independently. However, this principle in any way cannot be construed an absolute bar on the power of this Court in quashing of FIR in cases where the Court is satisfied that investigation is launched with mala fide intention, without jurisdiction or there is no likelihood of the conviction of the accused persons. In case reported as "Anwar Ahmad Khan v. The State (1996 SCMR 24)", the Apex Court has laid down as under:-

"It is well settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims".

In case reported as Raja Rustam Ali Khan v. Muhammad Hanif (1997 SCMR 2008), it has been observed as under:-

"It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution."

In case reported as "Muhammad Irshad Khan v. Chairman, National Accountability Bureau and 2 others (2007 PCr.LJ 1957) the learned Division Bench of Sindh High Court, observed as under:-

"Thus the consensus of the Honourable Supreme Court of Pakistan from the year 1971 and onward is that High Court has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims, therefore, if the investigation is launched malafidely or beyond the jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed."

The question what is "mala fide" has been answered by the Apex Court in case reported as "The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Rawalpindi .V.. Saeed Ahmad Khan (PLD 1974 SC 151) in the following way:-

"Mala fides" literally means "in bad faith". Action taken in bad faith is usually taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above."

1. On the touchstone of above criteria, I have to determine the fate of instant case. In the impugned FIR the petitioner was charged under Section 16 of the Ordinance and Section 341 of P.P.C. Before proceeding further it is appropriate to reproduce said sections for ready reference.

"Section-16. Dissemination of rumours, etc. Whoever-

(a) Makes any speech, or

(b) By words whether spoken or written or by signs or by visible or audible representations or otherwise publishes any statement, rumours or report, shall be punishment with imprisonment which may extend to three years, or with fine, or with both if such speech, statement, rumour, or report

(i) Causes or likely to cause fear or alarm to the public or to any section of the public;

(ii) Furthers or is likely to further any activity prejudicial to public safety or the maintenance of public order."

Similarly, definition of "wrongful restraint" contained in Section 339 P.P.C. attracting the provision of Section 341 of P.P.C. reads as under:-

"Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."

Now in order to determine as to whether from the contents of impugned crime report, both the offences alleged against the petitioner are made out or not, it is appropriate to reproduce the impugned FIR, which reads as under:-

First of all, we have to see whether Section 16 of the Ordinance attracted from the contents of the impugned FIR, the answer is big NO. In order to attract the provision of said offence not only making of speech or words whether spoken or written or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report is necessary but as a consequence thereof fear or alarm to the public or any section of the public or any activity prejudicial to the public safety or the maintenance of public is sina qua non. It is manifestly clear from the contents of the crime report that on receiving an information, the complainant attracted at the spot and saw the petitioner and his companions were chanting slogans but what kind of slogans were being chanted by them was conspicuously missing in the crime report. Since the nature of words, speech or rumour is necessary to determine the fate of its consequences that may occur due to said act is missing, therefore, it can safely be said that provision of said section is not attracted in the facts and circumstances of the case.

1. Now coming to attraction of Section 341 P.P.C. Bare reading of definition of "wrongful restraint" contained in Section 339 P.P.C. attracting the provision of Section 341 of P.P.C. it is manifestly clear that obstruction should be of a human being and mere allegation that due to the act of the petitioner flow of the traffic was disturbed was not sufficient to constitute said offence. Reliance is placed on case reported as "Mst. Riaz Bibi v. S.H.O. Police Station, Zahirpir (2002 PCr.LJ 530)", wherein it has been laid down as under:-

"Where it is not disclosed that a human body was obstructed and that the obstruction was only to vehicle and passage was common to both, thus no offence would be committed under section 341, P.P.C."

Since neither in the crime report, the complainant cited that any particular person was wrongfully restrained by the petitioner or his companion nor anyone step forward during the course of investigation to raise accusing finger towards the petitioner or his companion for wrongfully obstructing him/them, as such to my mind offence under section 341 P.P.C. is not made out.

1. Needless to observe that mens rea is a basic component in order to establish that a crime has taken place. It is derived from the maxim "actus reus non facit reum nisi mens sit rea" which means "that an act is not guilty unless the mind is not guilty". No person can be held accountable under the criminal law unless he can be proved to have acted with intention to commit a crime. Here in the instant case, the defence of the petitioner was that they were celebrating 77th Independence Day of our beloved country and the prosecution is unable to bring on record anything contrary to the claim of the petitioner. The prosecution is not equipped with any evidence that the petitioner and his companions were inclined to take the law into their hands and creating any law order situation. From the contents of the crime report, it is abundantly clear that the accused persons were going on motor-cycles in the shape of rally, as such in that backdrop question of blockage of road does not arise. According to the complainant, accused persons were 16/17 in numbers, so if they have any intention to cause any loss to the vehicle or the police officials, they could do so but nothing such like has taken place. Even according to theimpugned crime report on seeing the police party the accused persons scattered, which shows the respect of the law enforcement agencies in the mind of the petitioner and his companions. Had they any intention to create a law and order situation or disturb the public peace and tranquility, they could easily achieve desired result, thus, I have no hesitation in holding that in order to establish a crime against the petitioner basic ingredient of mens rea is patently missing in the instant case. In the words of Sir Matthew Hale one of the greatest scholars on the history of English Common Law and Jurist "Where there is no will to commit an offence there can be no just reason to incur the penalty."

2025 P Cr. L J 555

[Lahore]

Before Muhammad Tariq Nadeem, J

Shahid Ali alias Makhi---Appellant

Versus

The State---Respondent

Criminal Appeal No. 234893-J of 2018, decided on 1st October, 2024.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl-shibh-i-amd common intention---Appreciation of evidence---First Information Report lodged with promptitude---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---Record showed that on 31.07.2015 at about 06:00 p.m. complainant received a telephonic call from a witness to the effect that his son had become unconscious as a result of kicks and fists blows given by appellant---In this way, occurrence in the present case had taken place just prior to 06:00 p.m. on 31.07.2015 and on the same evening the matter was reported to the police by complainant at 06:15 p.m. through written application and thereafter FIR was chalked out at 06:30 p.m. at Police Station, which was located at a distance of seven kilometers from the place of occurrence---In FIR, the name of appellant with his role of giving kicks and fists blows to the deceased had been specifically mentioned---Thus, the matter in the case was reported to the police within reasonable time which hardly left any chance of consultation or deliberation in the intervening period---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

Muhammad Bashir and another v. The State and others 2023 SCMR 190 and Abdul Wahid v. The State 2023 SCMR 1278 rel.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl-shibh-i-amd common intention---Appreciation of evidence---Bona fide of the complainant---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---According to the narration of FIR itself, it could be seen that complainant had not himself witnessed the tragedy rather he was informed by witness about the incident, however, he had specifically mentioned therein the names of witnesses, who were present at the place of occurrence at relevant time and had seen the appellant giving kicks and fists blows to the deceased in the backdrop of a grudge of their previous altercation and even while appearing in the witness box before the Trial Court, he did not back-away even an inch from his stance---In this way, complainant had shown his bona fide by not standing up as an eye-witness of the occurrence regarding the murder of his real son---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315 P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd common intention---Appreciation of evidence---Related witnesses, evidence of---Scope---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---Record showed that complainant was not an eye-witness of the occurrence, therefore, the prosecution had mainly relied upon the statements of two eye- witnesses, who happened to be close relatives of deceased inasmuch as one eye-witness was his paternal uncle whereas other witness was his paternal cousin---While appearing in the witness box before the Trial Court, eye-witnesses remained in comfortable unison with each other on all aspects of the case---Eye-witnesses vigorously pointed their accusing fingers towards the appellant with specific attribution of giving kicks and fists blows to the deceased and despite lengthy cross-examination by the defence, nothing favourable to the appellant could be extracted from their mouths---Not a single piece of convincing evidence had been brought on the record by the defence to substantiate that the complainant or the eye-witnesses had deposed falsely due to their close relationship with the deceased or due to existence of their previous enmity with the appellant rather their evidence was consistent, straightforward, trustworthy, confidence inspiring and reliable---Thus, evidence of complainant and eye-witnesses against the appellant could not be discarded merely on the basis of oral assertions of appellant---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

Ali Asghar alias Aksar v. The State 2023 SCMR 596; Aman Ullah and another v. The State and others 2023 SCMR 723; Imran Mehmood v. The State and another 2023 SCMR 795 and Khalid v. The State through PG Sindh 2024 SCMR 1474 rel.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd common intention---Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence proved---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---Both the eye-witnesses had given specific reasoning qua their presence at the time and place of occurrence, which even otherwise could not be shattered by the defence while conducting cross-examination on them---Furthermore, it was a daylight occurrence and the parties being the residents of same locality were also previously known to each other, therefore, there was no chance of misidentification of the appellant---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Ghaffar Mahesar v. The State through P.G Sindh and others 2022 SCMR 1280 and Muhammad Yasin and another v. The State and others 2024 SCMR 128 rel.

(e) Criminal trial---

----Related witnesses, evidence of---Scope---Mere relationship of eye-witnesses with the deceased by itself is no ground to disbelieve their evidence.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd common intention---Appreciation of evidence---Unlikely for complainant and eye-witnesses to falsely implicate the accused---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---In the absence of any previous ill-will, malice, animosity or grudge against the appellant, it was highly unlikely for the complainant or the eye-witnesses to make the appellant a scapegoat be letting off the actual perpetrators of the offence---Substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes is a rare phenomenon---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C., and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

Aqil v. The State 2023 SCMR 831; Muhammad Ijaz v. The State 2023 SCMR 1375 and Muhammad Shafique v. The State Muhammad Imran and another 2024 SCMR 814 rel.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd common intention---Appreciation of evidence---Specific plea taken by accused---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---Appellant in his S.342, Cr.P.C statement had seriously claimed that instead of him, three other accused had committed the murder of deceased---In this regard, the eye-witnesses remained consistent throughout that the appellant was principal accused who gave kicks and fists blows to the deceased and subsequently medical evidence proved that one of those kicks and fists blows proved fatal and left no room for the survival of deceased---Defence miserably failed to shatter the evidence of said eye-witnesses---Version adopted by the appellant appeared to be an afterthought story fabricated by him in order to save his skin---When an accused takes a particular stance, onus to prove such stance shifts upon him---In the present case, the defence did not produce any evidence in support of the plea of the appellant---Hence, defence had failed to substantiate its version---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b) P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd common intention---Appreciation of evidence---Medical evidence corroborating ocular account---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---Medical evidence was in complete harmony with the ocular testimonies and no conflict could be pointed out to create dent in the prosecution case---Injuries attributed by the eye-witnesses to the appellant were duly observed by the Medical Officer on the person of deceased at the time of conducting autopsy on his dead body and issuing postmortem report---Furthermore, ocular evidence about the time of incident as well as the nature of injuries as narrated by the eye-witnesses also fully tallied with medical evidence---Medical Officer was also subjected to grueling cross-examination but nothing beneficial to the appellant could be extracted from him---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd, common intention---Appreciation of evidence---Delay of seventeen hours in conducting post-mortem upon the dead body of the deceased---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---Record showed that the dead body of deceased was shifted in the mortuary on 31.07.2015 at 08:20 p.m. where senior doctors usually did not remain available during night-time and on the next morning i.e. 01.08.2015 at 11:00 a.m. autopsy was conducted by Medical Officer, who was a Demonstrator in Department of Forensic Medicine and Toxicology---Thus, it seemed that conducting of autopsy on the dead body of deceased was deferred to following day to wait for concerned doctor---Keeping in view the said facts of the case, the time between the happening of occurrence and conducting autopsy was not consumed by the prosecution in fabricating any story or arranging eye-witness account of the case---Even otherwise, Court was not inclined to discard the overwhelming eye-witness account which was evenly supported by the medical evidence, merely because of a single circumstance that autopsy in the case was conducted after about seventeen hours of the occurrence without there being any element of concoction or fabrication of prosecution's case against the appellant---Circumstances established that case of the appellant fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

Zaheer Ahmad v. The State 2014 YLR 967; Muhammad Saleem v. The State 2018 SCMR 1001; Muhammad Asif and others v. Mehboob Alam and others 2020 SCMR 837 and Maskeen Ullah and another v. The State and another 2023 SCMR 1568 rel.

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

----Ss. 302(b), 316 & 34---Qatl-i-amd, qatl shibh-i-amd, common intention---Appreciation of evidence---Sentence, quantum of---Accused was charged for committing murder of the son of complainant by giving kicks and fists blows---According to the facts and circumstances of the case, the mischief for which the appellant had been handed down a guilty verdict did not come within the purview of "qatl-i-amd" as defined in S.302, P.P.C. rather keeping in view the mode and manner in which the appellant had committed the occurrence by giving kicks and fists blows to the deceased in the backdrop of a grudge of their previous altercation, present case fell within the scope of "qatl shibh-i-amd" as defined in S.315, P.P.C. and made punishable under S.316, P.P.C.---Thus, the conviction and sentence awarded by the Trial Court to the appellant on the charge under S.302(b), P.P.C. was set aside and while convicting him under S.316, P.P.C., he was sentenced to undergo rigorous imprisonment for a period of 10-years on account of committing qatl shibh-i-amd of deceased---Appeal was dismissed with modification in the conviction and sentence of the appellant.

2012 SCMR 437 rel.

Mian Abdul Qaddous for Appellant.

Moeen Ali, DPG for the State.

Abdul Razzaq Younas for the Complainant.

Date of hearing: 1st October, 2024.

Judgment

Muhammad Tariq Nadeem, J.---Shahid Ali alias Makhi appellant was tried by the court of Additional Sessions Judge, Lahore, in case FIR No.336 dated 31.07.2015, offence under sections 302, 34 P.P.C., registered at Police Station Hair, Lahore and after conclusion of trial, vide judgment dated 30.06.2018, he was convicted under section 302(b) P.P.C. and sentenced to Imprisonment for Life with the direction to pay compensation for an amount of Rs.2,00,000/- to the legal heirs of Muhammad Ijaz (deceased) as provided under section 544-A Cr.P.C. The amount of compensation was ordered to be recovered from the appellant as arrears of land revenue and if recovered, the same shall be distributed amongst the legal heirs of deceased according to their Shari shares and in case of default thereof, the appellant shall further undergo simple imprisonment for six months. However, he was given the benefit of section 382-B Cr.P.C.

Feeling aggrieved from the judgment of the trial court, the appellant has assailed his conviction and sentence through the captioned criminal appeal.

1. Brief facts of the case as narrated by Abdul Majeed complainant (PW.3) in complaint (Exh.PA) on the basis of which FIR (Exh.PA/1) was registered are that on 31.07.2015, he was away from his house in connection with some work. At about 06:00 p.m. Muhammad Saddique telephonically informed that Shahid alias Makhi (appellant), by giving kicks and fists blows to his son Muhammad Ijaz in front of house of Abdul Rehman, made him unconscious and asked the complainant to reach at the clinic of Doctor Kamran where Muhammad Saddique and Basit were going to shift the injured for medical treatment. When he (complainant) reached the clinic, his son Muhammad Ijaz had breathed his lost. Shahid Ali alias Makhi and three unknown accused persons took to their heels while raising lalkaras. Hence, the above-mentioned crime report.

2. After completion of investigation, report under section 173 Cr.P.C. was submitted against the appellant. On indictment, the appellant pleaded not guilty and claimed trial. In order to bring home the guilt of the appellant, the prosecution got examined as many as ten witnesses amongst whom Muhammad Saddique (PW.1) and Basit Ali (PW.2) have furnished the ocular account. Abdul Majeed complainant (PW.3) reiterated the contents of complaint (Exh.PA). Syed Muhammad Younus Bukhari, draftsman (PW.6) prepared scaled site plan of the place of occurrence (Exh.PD and Exh.PD/1). Asghar Ali S.I (PW.8) being investigating officer stated about various steps taken by him during investigation of the case. Medical evidence was furnished by Doctor Muhammad Akmal Karim (PW.9), who while posted as Demonstrator, KEMU, Lahore, conducted autopsy on the dead body of Muhammad Ijaz (deceased) and issued his postmortem report (Exh.PK).

The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up Gulzar Ahmad S.I (being dead), Ahmad Namdar 13486/C and Muhammad Nadeem, PWs being unnecessary and after tendering in evidence the Forensic Toxicology Analysis Report (Exh.PL) and Forensic Histopathology Report (Exh.PM), closed its evidence.

1. After completion of prosecution evidence, statement under section 342 Cr. P.C. of the appellant was recorded wherein he denied the allegations levelled against him and claimed his innocence. While answering to a question, "why this case against you and why the PWs have deposed against you? appellant replied as under:-

"I am innocent. Son of the complainant was done to death by beating of three unknown persons but complainant did not nominate said three unknown persons because the complainant taken huge money from them. The name of three unknown persons who beaten the complainant's son Ijaz i.e. Sakhi son of Allah Rakha, Majid son of Rafique Ali and Mudassar alias Jassy son of Yousaf Ali. Complainant and other PWs have previous enmity with me. Complainant and other PWs conceal the real facts and due to previous enmity involve me falsely in this case. Complainant, Basat Ali and Saddique they were not eye-witnesses of the occurrence. Due to strong relation and conspiracy with each other involved me in this case. During the investigation nothing was recovered by me. I have no link with this occurrence… "

He neither opted to appear as his own witness within the scope of section 340(2) Cr.P.C. nor produced any evidence in his defence.

1. The trial court vide judgment dated 30.06.2018 held the appellant guilty, convicted and sentenced him as mentioned above, hence, this criminal appeal.

2. Learned counsel for the appellant contended that the appellant is absolutely innocent and has been involved in this case by the complainant and other prosecution witnesses on the basis of their mala fide intentions and ulterior motives; that in fact the occurrence was committed by three accused namely Sakhi, Majid and Mudassar alias Jassy, but they were never nominated by the complainant party, however, the appellant has been made a scapegoat because of his previous enmity with the complainant party. He further contended that Abdul Majeed complainant (PW.3) was not an eye-witness of the occurrence and his evidence was based on hearsay whereas remaining two private witnesses of the prosecution namely Muhammad Saddique (PW.1) and Basit Ali (PW.2) were also not present at the time and place of occurrence. He added that postmortem examination on the dead body of deceased was conducted with the delay of seventeen hours, which strongly indicates that time was consumed in arranging eye-witness account and then a story qua the occurrence was fabricated by complainant party just to falsely implicate the appellant. He further maintained that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence which aspect of the matter went unnoticed, causing serious prejudice against the appellant. It is also argued that the medical evidence also goes against the stance of the appellant and it does not prove that the deceased in this case met with an unnatural death. Lastly prayed that the appeal be accepted and the appellant may be acquitted of the charge.

3. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant and inter alia argued that the appellant is named in a promptly lodged FIR with specific role which is fully established by the medical evidence. Further argued that the complainant and the eye-witnesses had no earthly reason whatsoever to falsely implicate the appellant in this case and although appellant has alleged about existence of his previous enmity with the complainant party, but he has not brought on record a single iota of evidence to establish this fact. Next argued that the complainant and the eye-witnesses were blood relatives of the deceased and being so, they cannot be expected to falsely implicate the appellant that too by letting off the actual perpetrator of offence. It is strenuously argued that the eye-witnesses have successfully proved their presence at the spot as well as having seen the tragedy with their own eyes with the role played by appellant during the occurrence is proved and it is also established that the deceased had met with an unnatural death due to the injuries caused by the appellant. Finally, they argued that since the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt, therefore, the appeal filed by him merits dismissal.

4. I have given anxious hearing to the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant and perused the record with their able assistance.

5. It is a matter of record as mentioned in FIR (Exh.PA/1) that on 31.07.2015 at about 06:00 p.m. Abdul Majeed complainant (PW.3) received a telephonic call from Muhammad Saddique (PW.1) to the effect that his son Muhammad Ijaz had become unconscious as a result of kicks and fists blows given by Shahid Ali alias Makhi appellant. In this way, occurrence in the present case had taken place just prior to 06:00 p.m. on 31.07.2015 and on the same evening, the matter was reported to the police by Abdul Majeed complainant (PW.3) at 06:15 p.m. through written application (Exh.PA) and thereafter FIR (Exh.PA/1) was chalked out at 06:30 p.m. at Police Station Hair, Lahore, which was located at a distance of seven kilometers from the place of occurrence. In FIR (Exh.PA/1), the name of Shahid Ali alias Makhi appellant with his role of giving kicks and fists blows to the deceased has been specifically mentioned. I am, therefore, of the view that the matter in this case was reported to the police within reasonable time which hardly left any chance of consultation or deliberation in the intervening period. Reliance is placed upon the case-laws titled as "Muhammad Bashir and another v. The State and others" (2023 SCMR 190) and "Abdul Wahid v. The State" (2023 SCMR 1278).

6. According to the narration of FIR (Exh.PA/1) itself, it can be seen that Abdul Majeed complainant (PW.3) had not himself witnessed the tragedy rather he was informed by Muhammad Saddique (PW.1) about the incident, however, he (PW.3) has specifically mentioned therein the names of Muhammad Saddique (PW.1) and Basit Ali (PW.2) as the witnesses, who were present at the place of occurrence at relevant time and had seen the appellant while giving kicks and fists blows to the deceased on the backdrop of a grudge of their previous altercation and even while appearing in the witness box before the trial court, he did not back-away even an inch from his stance. In this way, Abdul Majeed complainant (PW.3) has shown his bona fide by not standing up as an eye-witness of the occurrence regarding the murder of his real son Muhammad Ijaz.

7. As noted above, Abdul Majeed complainant (PW.3) was not an eye-witness of the occurrence, therefore, the prosecution has mainly relied upon the statements of two eye-witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2), who happened to be the close relatives of Muhammad Ijaz (deceased) inasmuch as PW.1 was his paternal uncle whereas PW.2 was his paternal cousin. While appearing in the witness box before the trial court, they remained in comfortable unison with each other on all aspects of the case. They vigorously pointed their accusing fingers towards the appellant with specific attribution of giving kicks and fists blows to the deceased and despite lengthy cross-examination by the defence counsel, nothing favourable to the appellant could be extracted from their mouths.

So far as the contention of learned counsel for the appellant that none of the eye-witnesses produced by the prosecution before the trial court were present at the time and place of occurrence is concerned, I have observed that both Muhammad Saddique (PW.1) and Basit Ali (PW.2) have given specific reasoning qua their presence at the time and place of occurrence, which even otherwise could not be shattered by the defence while conducting cross-examination on them. Furthermore, it was a daylight occurrence and the parties being the residents of same locality were also previously known to each other, therefore, there was no chance of misidentification of the appellant. Muhammad Saddique (PW.1) has stated in his examination-in-chief as under:-

"On 31.07.2015 at about 06:00 p.m. I along with Basit Ali son of Muhammad Latif were present at my shop situated at Natha Sigh Wala. We heard voice. We attracted towards the place of noise and saw accused Shahid alias Makhi was present near the gate of Abdul Rehman and he was giving kicks and fists to Muhammad Ijaz."

During the cross-examination, he (PW.1) stated about his abode and shop as infra: -

"Distance between the place of occurrence and my house is 50/60 feet. …………………….……………….………………………… ……………………………………….………............................... Distance between my shop and place of occurrence is 16/17 karams."

I have noted that almost same is the statement of Basit Ali (PW.2). Relevant lines of his examination-in-chief read as under:-

"On 31.07.2015 (Friday) at about 06:00 p.m. I along with Saddique son of Ahmad Din were present at the shop of Saddique situated at Natha Singh. We heard noise and upon listening ran towards the place of noise. We saw Shahid Ali Makhi was giving physical torture to Ijaz with kicks and fists near the gate of Abdul Rehman Lambardar……"

Moreso, upon the cross-examination by defence counsel, he (PW.2) further explained the distance of his house and place of his presence from where he reached at the place of occurrence. Relevant lines of his replies in cross-examination are mentioned below: -

"My house is situated at a distance of 10 karams from place of occurrence and there are two streets in between. It is incorrect that my house is at a distance 3/4 acres from the place of occurrence. I also work as electrician.

.

It is incorrect to suggest that distance between Saddique shop and my house is 1500/2000 feet. There is distance of 15/16 karams between shop of Muhammad Saddique and place of occurrence. The shop of Saddique remains open during week days however, it is closed in case of any acute need."

In the light of above mentioned circumstances, I am quite confident to hold that Muhammad Saddique (PW.1) and Basit Ali (PW.2) are truthful witnesses and their presence at the spot at the time of occurrence is natural. Reliance is placed upon the case-laws titled as "Muhammad Akram alias Akrai v. The State" (2019 SCMR 610), "Ghaffar Mahesar v. The State through P.G Sindh and others" (2022 SCMR 1280) and "Muhammad Yasin and another v. The State and others" (2024 SCMR 128).

Learned counsel for the appellant has also brought the depositions of eye-witnesses under attack on account of their close relationship with the deceased as well as existence of their previous enmity with the appellant. With regard to the objection qua close relationship, it is settled proposition of law that mere relationship of eye-witnesses with the deceased by itself is no ground to disbelieve their evidence. Similarly the contention of learned counsel for the appellant about existence of previous enmity between the appellant and the complainant party is merely an oral assertion which could not be established by the defence during the trial. Not a single piece of convincing evidence has been brought on the record by the defence to substantiate that the complainant or the eye-witnesses had deposed falsely due to their close relationship with the deceased or existence of their previous enmity with the appellant rather I am convinced that their evidence is consistent, straightforward, trustworthy, confidence inspiring and reliable and as such, their evidence against the appellant cannot be discarded merely on the basis of aforementioned oral assertions of learned counsel for the appellant. Guidance in this respect has been sought from the case-laws titled as "Ali Asghar alias Aksar v. The State" (2023 SCMR 596), "Aman Ullah and another v. The State and others" (2023 SCMR 723), "Imran Mehmood v. The State and another" (2023 SCMR 795) and "Khalid v. The State through PG Sindh" (2024 SCMR 1474).

Moreso, I am of the view that in the absence of any previous ill-will, malice, animosity or grudge against the appellant, it was highly unlikely for the complainant or the eye-witnesses to make the appellant a scapegoat by letting off the actual perpetrators of the offence. It is by now well settled law that substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes is rare phenomenon. Reliance is placed on the cases titled as "Aqil v. The State" (2023 SCMR 831), "Muhammad Ijaz v. The State" (2023 SCMR 1375) and "Muhammad Shafique v. The State Muhammad Imran and another" (2024 SCMR 814).

1. Although, the appellant has seriously criticized in his statement under section 342 Cr.P.C. that instead of him, three other accused had committed the murder of deceased. In this regard, I may observe here that the eye-witnesses remained consistent throughout that the appellant was principal accused who gave kicks and fists blows to the deceased and subsequently medical evidence proved that one of those kicks and fists blows proved fatal and left no room for the survival of deceased. The defence miserably failed to shatter the evidence of above-said witnesses. The above version adopted by the appellant appears to be an afterthought story fabricated by him in order to save his skin. I may also observe here that when an accused takes particular stance, onus to prove such stance shifts upon him but in this case, the defence did not produce any evidence in support of the plea of the appellant. Hence, I am of the view that defence has failed to substantiate its version.

2. Apart from the unblemished depositions of eye-witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2), I have observed that medical evidence is in complete harmony with the ocular testimonies and no conflict could be pointed out to create dent in the prosecution case. The injuries attributed by the eye-witnesses to the appellant were duly observed by the doctor on the person of Muhammad Ijaz (deceased) at the time of conducting autopsy on his dead body and issuing postmortem report (Exh.PK). Furthermore, ocular evidence about the time of incident as well as the nature of injuries as narrated by the eye-witnesses has also fully tallied with medical evidence. It may be observed here that Doctor Muhammad Akmal Karim (PW.9) was also subjected to grueling cross-examination but nothing beneficial to the appellant could be extracted from him.

3. Much emphasis has been laid by learned defence counsel upon the delay in conducting autopsy on the dead body of deceased. Although, it is an undisputed fact that the autopsy in this case was conducted about seventeen hours after the occurrence but the question of paramount consideration still remains that whether intervening time was consumed by the prosecution in fabricating any story or arranging eye-witness account of the case. To resolve this controversy, I have observed that the FIR (Exh.PA/1) had been chalked out by Muhammad Kamran ASI (PW.4) on the basis of written application (Exh.PA) of Abdul Majeed complainant (PW.3) within about half an hour after the occurrence. In his examination-in-chief, Muhammad Kamran ASI (PW.4) has stated as under:-

"On 31.07.2015, I was posted at Police Station hair. On the same day, complaint Ex-PA was received by me through Niaz Ahmad 21116/C to the police station for registration of FIR on the basis of which I drafted the FIR No. 336/15 Ex-PA/1 for the offence under section 302/34 P.P.C. at Police Station Hair. I registered the same without any omission or deletion."

During cross-examination upon Muhammad Kamran ASI (PW.4) not a single question has been put to him that the FIR (Exh.PA/1) was not chalked out on the date and time mentioned in the relevant column. The whole cross-examination conducted by the defence on Muhammad Kamran ASI (PW.4) is also reproduced hereunder:-

"Niaz Ahmad constable brought complaint before me for registration of FIR. He came to me at 06:30 p.m. I immediately lodged FIR. Niaz Ahmad constable submitted a single application."

The above fact emphatically explains that the FIR (Exh.PA/1) had been registered prior to escorting the dead body of deceased to mortuary and in FIR (Exh.PA/1), all the details regarding the occurrence particularly the time, place and mode of occurrence as well as the names of assailant, deceased and eye-witnesses have been sufficiently explained in a natural manner.

However, if relying on the contention of learned counsel for the appellant, it is still presumed for the time being that the intervening time of occurrence and autopsy was used in fabricating a story and maneuvering the eye-witness account, then it must have been for Abdul Majeed complainant (PW.3) himself to step forward as an eye-witness of the tragedy and implicate maximum persons from appellant's family after noticing as many as nine injuries on the body of his deceased son, however, Abdul Majeed complainant (PW.3) simply stated that he was away from the place of occurrence and was telephonically informed by one of the eye-witnesses namely Muhammad Saddique (PW.1) that the appellant, alone, had caused all the injuries by giving kicks and fists blows on the body of deceased and on seeing the eye-witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2), he took to his heels while leaving the deceased unconscious.

Besides, it is also a circumstance that the dead body of deceased was shifted in the mortuary of King Edward Medical University, Lahore, on 31.07.2015 at 08:20 p.m. where senior doctors usually do not remain available during night-time and on the next morning i.e. 01.08.2015 at 11:00 a.m. autopsy was conducted by Doctor Muhammad Akmal Karim (PW.9), who was a Demonstrator in Department of Forensic Medicine and Toxicology at King Edward Medical University, Lahore. It seems that conducting of autopsy on the dead body of deceased was deferred for following day to wait the concerned doctor. Keeping in view the above highlighted facts of the case, I am satisfied that the time between the happening of occurrence and conducting autopsy was not consumed by the prosecution in fabricating any story or arranging eye-witness account of the case. Even otherwise, I am not inclined to discard the overwhelming eye-witness account which is evenly supported by the medical evidence, merely because of a single circumstance that autopsy in this case was conducted about seventeen hours after the occurrence without there being any element of concoction or fabrication of prosecution's case against the appellant. While dealing with almost identical proposition, learned Division Bench of this Court in the case titled as "Zaheer Ahmad v. The State" (2014 YLR 967) has held as under:-

"It has been observed by us that the matter was reported to the police on the application submitted by Muhammad Latif complainant without any delay as the occurrence took place in this case on 4-4-2006 at 1-20 pm and the FIR had been chalked out al the same day at 1-50 p.m. within a span of thirty minutes whereas the Police Station is 2 kilometers away towards North from the place of occurrence. So the matter has been reported in this case with sufficient promptitude and there is no unconscionable or inexcusable delay in registration of the FIR. While referring the Post-mortem Examination Report the learned counsel for the appellant seriously contend that the Dr. Rafaqat Ali (P.W.7) had conducted the post-mortem of the deceased on 5-4-2006 at 12-15 p.m. with one day delay which shows that first the matter was consulted and thereafter with active connivance of the police the FIR was lodged. In this context we have minutely perused the Post-mortem Examination Report of the deceased wherein it has specifically been mentioned that the deadbody was lodged in hospital on 4-4-2006 at 4-15 p.m. If there is any delay that is on the part of doctor and delay alone cannot destroy the prosecution case in presence of the confidence inspiring evidence. Thus, we have not seen any element of consultations or deliberations over the matter on the part of the prosecution"

I am also fortified from the wisdom laid down by the Supreme Court of Pakistan in the cases titled as "Muhammad Saleem v. The State" [2018 SCMR 1001], "Muhammad Asif and others v. Mehboob Alam and others" (2020 SCMR 837) and "Maskeen Ullah and another v. The State and another" (2023 SCMR 1568).

1. Learned counsel for the appellant has argued with vehemence that if for the sake of arguments the prosecution is believed to have proved its case whereby the prosecution has saddled the appellant merely with the responsibility of giving kicks and fists blows to the deceased, even then the appellant cannot be held responsible for his murder, because, it was a case of natural death caused by heart attack in the light of prosecution's own medical evidence. In this context, it is noteworthy that the autopsy on the dead body of Muhammad Ijaz (deceased) was conducted by Doctor Muhammad Akmal Karim (PW.9), who observed nine injuries in the shape of multiple bruises and an abrasion on different parts of body of deceased, which are reproduced as infra:-

Injury No. 1

A bruised area measuring 1.3 x 0.8 cm present on left ear pinna.

Injury No. 2

Multiple bruised area 5 in number present on left side of chest on front latterly spread in an area measuring 10 x 12 cm. Smallest measuring 0.5 x 0.5 cm and largest measuring 1 x 1 cm.

Injury No. 3

Multiple bruised areas on front of left arm 4 in number, the smallest measuring 0.5 x 0.5 cm and largest measuring 0.7 x 0.7 cm. Spread in an area measuring 7 x 5 cm.

Injury No. 4

A bruised area measuring 1 x 1 cm on left side of abdomen, 6 cm from left iliac rest, 7 cm from umbilicus.

Injury No. 5

A bruised area measuring 2.5 x 2 cm on front of upper part of left thigh, 5 cm below iliac rest on front, 30 cm above left knee.

Injury No. 6

A abrasion measuring 0.5 x 0.3 cm on the inner malleolus of left leg.

Injury No. 7

A bruised area measuring 4 x 5 cm on inner side of right thigh and adjacent area on front of thigh at upper most part, 13 cm above right knee.

Injury No. 8

A bruised measuring 3 x 2 cm on inner side of right thigh, 10 cm below inner side of thigh, 11 cm above knee.

Injury No. 9

A bruised measuring 1.8 x 1 cm present on left scrotum."

After postmortem examination, the doctor waited for the reports of Toxicology and Histopathology Sections of Punjab Forensic Science Agency, Lahore, and upon receipts of aforementioned reports, he gave his final opinion as under: -

Final Opinion:-

I have perused the reports received from toxicology section and histopathology section of Punjab Forensic Science Agency, Lahore and my final opinion is as under: -

The circumstances of death autopsy findings, negative forensic toxicology report and unremarkable findings in histopathology report mentioned supra are suggestive of death due to vasovagal shock consequent of blunt trauma to testis under injury No.9 mentioned in autopsy report.

The expression "vasovagal" has been defined in Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology (for Classrooms and Courtrooms) as under: -

"Syncope: This is death from failure of function of the heart resulting in hypoperfusion and hypoxia of the brain. It is due to (1) heart disease, (2) haemorrhage, (3) pathological states of blood, (4) exhausting disease, or (5) poisoning due to digitalis, potassium, aconite or oleander. At autopsy, the heart appears contracted. It contains very little blood, if death is due to haemorrhage. The viscera appear pale and the capillaries congested.

A syncopal type of death may also result from reflex cardiac arrest due to:

1. Vagal stimulation, commonly known as vasovagal shock, vagal inhibition or neuro-genic shock.

2. Rarely ventricular fibrillation due to cardiac problems or spontaneous sympathetic nervous discharge.

Vagal inhibition is important in certain cases of accidental hanging; throttling (manual strangulation); blow to the epigastrium; abortion; emotional tension; sudden immersion of the body in cold water; insertion of an instrument into the uterus. Bladder, rectum or any other body cavity; and light anaesthesia. In these conditions, as the trauma may be very trivial, the injury is not visible. Therefore, there are no characteristic post-mortem appearance and the cause of death is inferred from the history and negative findings, viz. no natural disease, injury or poisoning, to account for the cause of death."

In another Textbook of Forensic Medicine Principles and Practice (First Edition of 2001), authored by Krishan Vij, Professor and Head of the Department of Forensic Medicine, Government Medical College, Chandigarh, the term "Vagal Inhibition" has been defined as follows: -

"Vagal Inhibition: -- Also variously known as Vasovagal attack, reflex cardiac arrest, nervous apoplexy, instantaneous physiological death or syncope with instantaneous exitus-or primary neurogenic shock. This state is characterised by sudden stoppage of heart following reflex stimulation of vagus nerve endings. There is a wide network of sensory nerve supply to the skin, pharynx, larynx, pleura, peritoneum covering the abdominal organs or extending to the sprermatic cord, uterine cervix, for the reflex action and pass through the lateral tracts of spinal cord, effect the local reflex connections over the spinal segments and then travel to the vagus nucleus in the brain. The vagus nucleus has connections with sensory cerebral cortex and thalamus, besides the spinal cord, as stated. The efferent then originate from there and affect the heart through the related branches.

Such deaths occur with dramatic suddenness within seconds or at the most in a few minutes. The loss of consciousness is usually instantaneous on these occasions and death follows soon afterwards. Consequently, the mobility is negligible and the victim is likely to be found in the posture/position in which he/she was at the time of death. The condition, therefore, is characterised by fulminating circulatory failure which may be attributed either to reflex slowing/stoppage of heart, reflex vasodilatation leading to profound fall in blood pressure or a varying combination of both the mechanisms. The victims are usually young adolescents of nervous temperament but anyone may be susceptible. The factor responsible for initiating or triggering the vaso-vagal phenomenon may be aminor trauma or relatively simple and harmless peripheral stimulation at the vulnerable sites upon the body as described earlier. Obviously therefore, a variety of circumstances have been incriminated as precipitating factors, as outlined below:

Sudden pressure over the neck especially over the region of carotid sinuses as may be operating in occasional cases of strangulation and hanging (Carotid sinus is a dilated part of the wall of the carotid artery and contains numerous nerve ending from the glossopharyn-geal nerve and communicates with the medullary cardiovascular center and dorsal-motor nucleus of vagus in the brain, related with the control of blood pressure and regulation of heart-activity). Such deaths are of considerable medicolegal significance as death may ensue under the circumstances in which there had been no intention to kill. In some instances it may be reasonable to regard such deaths as borderline between a natural and an accidental death. Sudden blow on the abdomen or scrotum, larynx or genital organs. During intubation of, or from impaction of food/some other material into the larynx....."

In Jaising P. Modi's Textbook of Medical Jurisprudence and Toxicology (Twenty Seventh Edition), vagal inhibition has been explained as infra: -

" Vagal Inhibition

Vagal inhibition causes sudden cardiac arrest from fright or terror, or it may be caused during a sudden and unexpected fall in the water, often the water striking against the chest and the pit of the stomach. The sudden impingement of unduly cold water on the nasopharyax, can result in vagal inhibition. The ability to swim in ice-cold water (4.7°C) is much less than in warm water due to increased respiratory reflexes causing breathlessness in the thin man, and hypothermia in the fat person. This may explain sudden death in cold water."

Dr. K.S. Narayan Reddy in his Book "Medical Jurisprudence and Toxicology (Law Practice and Procedure) has elucidated the "reflex vagal inhibition" in the following words: -

"(2) Reflex Vagal Inhibition: In this, there may not be visible external injury.

(3) SHOCK: Shock is a circulatory disturbance characterised by hypoperfusion of cells and tissues due to reduction in the volume of blood or cardiac output, or redistribution of blood resulting in a decrease of effective circulating volume.

Primary Shock: Primary or neurogenic shock (vaso-vagal shock or reflex cardiac arrest) results from a sudden reduction of venous return to the heart due to neurogenic vasodilation with pooling of blood in the peripheral vascular bed, especially in the sub-clavian area. There is yawning, sighing respirations, nausea and vomiting followed by unconsciousness, but the attack rarely lasts for more than a few minutes. There is pallor, coldness of the extremities, weak rapid pulse and low blood pressure. The cardiac output is unchanged. It may follow any form of stress. Psychological factors, such as fear, grief, anxiety, emotion and pain due to various causes also play a large part. It may occur when a few ml. of blood are withdrawn, or from the sight of blood or an anticipation of injection.

Coming to the contention raised by learned counsel for the appellant that it was a case of natural death, at the cost of repetition it is mentioned here that as per final opinion given by Doctor Muhammad Akmal Karim (PW.9), Demonstrator, King Edward Medical University Lahore, blunt trauma to testis under injury No.9 (mentioned above) had resulted in vasovagal inhibition/shock and death of Muhammad Ijaz (deceased), therefore, keeping in view the above legal and factual position of the case, death due to vasovagal inhibition/shock cannot be termed as natural. I am of the view that no doubt is left that it is a case of homicidal death of Muhammad Ijaz (deceased) due to the assault extended by the appellant by giving kicks and fists blows on different parts of his body, particularly his left scrotum which is one of the most sensitive parts of male human's body.

1. Having reappraised the prosecution evidence, I have come to an irresistible conclusion that the prosecution has produced sufficient tangible and confidence inspiring ocular account furnished by eye-witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2) which is explicitly supported by the medical evidence that successfully brought home the guilt of the appellant on the charge of giving kicks and fists blows to Muhammad Ijaz (deceased) which ultimately led to the latter's unnatural death. However, I am not satisfied with appellant's conviction and sentence on the charge under section 302(b) P.P.C. because in the light of facts and circumstances of the case, I am of the view that the mischief for which the appellant has been handed down a guilty verdict does not come within the purview of "qatl-i-amd" as defined in section 302 P.P.C. rather keeping in view the mode and manner in which the appellant had committed the occurrence by giving kicks and fists blows to the deceased on the backdrop of a grudge of their previous altercation, I am convinced that his case falls within the scope of "qatl shibh-i-amd" as defined in section 315 P.P.C. and made punishable under section 316 P.P.C., which along with an illustration, for the purpose of reference, are mentioned below:-

"315. Qatl shibh-i-amd: Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd.

Illustration

A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl shibh-i-amd"

316. Punishment for Qatl shibh-i-amd: Whoever commits qatl shibh-i-amd shall be liable to diyat and may also be punished with imprisonment of either description for a term which may extend to [twenty-five years] years as ta'zir.

2025 P Cr. L J 589

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Muhammad Amjad Rafiq, JJ

Abdul Basit---Appellant

Versus

The State and others---Respondents

Criminal Appeal No. 812 of 2022, decided on 14th October,2024.

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

----Ss. 365-B & 376---Abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Ocular account furnished by victim---Victim sole eyewitness of the occurrence---Sufficient for conviction---Accused was charged that he along with his co-accused kidnapped the complainant and raped her, and accused also prepared her nude pictures for blackmailing---Ocular account was furnished by victim/complainant alone, whereas, statement of father of the victim was about post occurrence events---In her examination-in-chief the victim reiterated the story as had been set out in the complaint/FIR and deposed about step by step events in the same sequence---Complainant was subjected to cross-examination at sufficient length but nothing damaging to the prosecution or favourable to the defence could be elicited from her mouth---By tenor of cross-examination the defence tried to bring on record that at one point of time the victim and the accused/appellant were residing in the same village and parents of the accused/appellant as well as victim had friendly relations, thus they both i.e. accused/appellant and the victim, were known to each other---Instead of lending any support to the defence, the admission of the victim on above aspects went on to strengthen the prosecution's stance as it was the case of prosecution itself that because of such friendly relations the accused/appellant used to visit the house of the victim's parents along with co-accused, with whom the victim also developed relations and out of such linkage she left the house along with co-accused to make some purchases and fell prey to nefarious activity by the accused/appellant---Since the statement of the victim, had been found to be worthy of credence, confidence inspiring, credible and irrefutable, therefore, even if she was a sole witness, her statement could safely be made basis to record conviction---Circumstances established that prosecution had proved the case against the appellant beyond shadow of reasonable doubt---Appeal, being devoid of merit, was dismissed, in circumstances.

Muhammad Mansha v. The State 2001 SCMR 199 Muhammad Ehsan v. The State 2006 SCMR 1857 and Atif Zareef and others v. The State PLD 2021 SC 550 rel.

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

----Ss. 365-B & 376---Qanun-e-Shahadat (10 of 1984), Arts. 71 & 139---Abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Nude pictures---Legal requirements for using such pictures as evidence for convicting accused---Accused was charged that he along with his co-accused kidnapped the complainant and raped her, and accused also prepared her nude pictures for blackmailing---Audio/video clip including snaps/ photographs as evidence maintained a dual character in the law of evidence; it is termed as document as well as a material thing (physical evidence), also known as real evidence---Snaps/ photographs do carry information that includes expression, gestures, voice and video, therefore, such clips/snaps are sought to be produced before the Court to prove the 'information' contained in it as evidence of facts recorded therein and oral account of which is to be spoken by a witness and not by the document alone---While as material thing it is to be produced for the inspection of Court---Principles of evidence relating to admissibility of documents are fully applicable on such type of evidence---Permission and sanction of law to bring on record evidence if it is in the form of document is regulated under Art.139 of Qanun-e-Shahadat, 1984---Said Article in the light of illustration therein authorizes the Court to ask, when any witness is making statement about a fact, to support his contention with any document if such fact is incorporated therein---Room for such discretion of Court is obviously reflective of farsighted wisdom of legislature to cater to the requirement of an emerging need of evidence in a particular situation for the purpose of corroboration to fortify or strengthen the deposition---Documentary evidence runs over or defeats the oral evidence under the maxim "res ipsa loquitor"---Second status of such evidence is of material thing (physical evidence) or oral evidence which is produced for the inspection of Court as ordained in second proviso to Art. 71 of Qanun-e-Shahadat, 1984---In the present case pictures were put to the accused/appellant during his statement under S.342, Cr.P.C., for seeking his explanation but neither he challenged such pictures in any manner during cross-examination nor gave any explanation in his statement under S.342, Cr.P.C.---Silence of the accused/appellant over such an important factor connoted that there was nothing to defend against such nude pictures, thus the requirement of law for using these snaps/pictures was completed and those could safely be used as evidence---Circumstances established that prosecution had proved the case against the appellant beyond shadow of reasonable doubt---Appeal, being devoid of merit, was dismissed, in circumstances.

Numan alias Nomi and others v. The State 2023 PCr.LJ 1394; R v. Cook [1987] 1 All ER 1049 (CA); R v. Williams (1984) 79 Cr App Rep 220 (CA); The Road We're Travelling On, v. Treacy" [1989] New Law Journal (NLJ) 1079) and Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

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

----Ss. 365-B & 376---Abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Delay of one and half month in lodging the FIR---Inconsequential---Victim trying to protect her honour and reputation and that of her family---Accused was charged that he along with his co-accused kidnapped the complainant and raped her, and accused also prepared her nude pictures for blackmailing---In this case, undoubtedly, the FIR was registered after almost one and half month of the crime having been committed---However, such delay in reporting the matter to the police was immaterial in the sense that throughout it had been the stance of the victim that her nude pictures were taken by the accused/appellant, she was blackmailed and she fell victim number of times during her captivity under such pressure and fear, therefore, she kept mum in order to save her and the family honour---When nude pictures of victim were thrown in her house and the matter stood disclosed to family members, she narrated the whole occurrence---Thus, victim being an educated lady with qualification of MA English had definitely been thinking about her family honour as well as her social and practical life before reporting the matter to police---Even otherwise, the fact that the modesty of a virgin girl was violated by sexual assault explained the apprehension of the victim and her family in approaching the police immediately---Delay in reporting the crime to the police in respect of an offence involving a person's honour and reputation which society may view unsympathetically could play on the minds of a victim and her family and deter them to go to the police---Circumstances established that prosecution had proved the case against the appellant beyond shadow of reasonable doubt---Appeal being devoid of merit, was dismissed, in circumstances.

Hamid Khan v. The State 1984 SCmr 448 rel.

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

----Ss. 365-B & 376---Abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Medical evidence---Medical officer not cross-examined---Effect---Accused was charged that he along with his co-accused kidnapped the complainant and raped her, and accused also prepared her nude pictures for blackmailing---Though the medical evidence did not contain any fact that sexual act was committed with the victim by force but it was clear from the statement of victim that she was under the effect of intoxication as well as fear of nude pictures, therefore, in either of the situations, she could not resist the act of rape---Otherwise, of course the said act of intercourse was against the will and consent of victim, which was the requirement of S.375, P.P.C---During medical examination Woman Medical Officer also found hymen of victim as old torn, though she was unmarried but Medical Officer was not even cross-examined by the defence about any fact contained in Medico-Legal Report---Moreover, it was in the evidence that delayed Medico-Legal Examination was due to the reason that victim was terrified---Prosecution had also produced Medical Officer who had examined the accused/appellant and found him potent to perform sexual act; his observations in that respect were recorded in Medico-Legal Report, therefore, such examination was also a relevant fact showing ability of accused/appellant to commit rape with the victim---Circumstances established that prosecution had proved the case against the appellant beyond shadow of reasonable doubt---Appeal, being devoid of merit, was dismissed, in circumstances.

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

----Ss. 365-B & 376---Qanun-e-Shahadat (10 of 1984), Arts. 27 & 68---Abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Bad character of accused---Scope---Accused was charged that he along with his co-accused kidnapped the complainant and raped her, and accused also prepared her nude pictures for blackmailing---Bad character of accused in criminal cases was not relevant under Art.68 of the Qanun-e-Shahadat, 1984---Perusal of evidence showed that defence itself conceded the involvement of the appellant in offence of dacoity while putting question upon the victim during her cross-examination, which turned attention to Art.27 of Qanun-e-Shahadat, 1984 dealing with relevancy of facts showing existence of state of mind, or of body or bodily feeling---In the evidence of that case facts were brought on record that the appellant had affiliation with victim since her childhood and also wanted to marry her, therefore what he had done could not be regarded as innocent mistake rather his state of mind and bodily feeling made him to commit such a heinous offence---Thus, inclination and attraction of accused towards victim was a relevant fact in the case which could safely be read against him for his intention to commit act of rape and preparation of nude pictures---Circumstances established that prosecution had proved the case against the appellant beyond shadow of reasonable doubt---Appeal, being devoid of merit, was dismissed, in circumstances.

Sh. Muhammad Raheem for Appellant.

Muhammad Akbar Khan Mughal for the Complainant.

Shahid Aleem, District Public Prosecutor with Muhammad Ramzan, Sub-Inspector for the State.

Date of hearing: 14th October, 2024.

Judgment

Muhammad Amjad Rafiq, J.--- Abdul Basit, hereinafter to be called as "accused/appellant" faced trial before learned Additional Sessions Judge/GBV, Multan in case FIR No.354 dated 24.05.2018 under sections 365-B/376 P.P.C Police Station New Multan and on conclusion of trial vide judgment dated 23.07.2022 he was convicted under section 365-B P.P.C and sentenced to imprisonment for life with fine of Rs.50,000/-, in case of default to further undergo six month's simple imprisonment. He was also convicted under section 376(i) P.P.C and sentenced to rigorous imprisonment for fifteen years with fine of Rs.50,000/-, in case of default to further suffer simple imprisonment for six months; both the sentences were ordered to run concurrently and benefit of section 382-B Cr.P.C. was extended, hence the instant appeal.

1. According to the prosecution case as reflected from FIR Ex.PA/2 lodged on the complaint of Nadia Shaheen (victim), she was unmarried and living with her parents, the accused/appellant and Mst. Haseena Bibi (since PO) used to visit her parents, thus she developed friendship with Mst. Haseena Bibi. On 09.04.2018 at 5.00 p.m. Mst. Haseena Bibi came to her house and took her along for making some purchases from Gulshan Market. On their way near Chowk Kumharanawala the accused/appellant, already known to the victim came on a car and offered them a drive; the victim refused but Mst. Haseena forced, whereupon she sat in the car. At Vehari Chowk when the car stopped, the victim reminded Mst. Haseena Bibi to go for Gulshan Market, whereupon, Mst. Haseena pretended an urgent work there. After a while, the accused/appellant and Mst. Haseena brought sandwich and after eating it the victim became unconscious; both of them took her to the house of Mst. Haseena where accused/appellant committed rape with her with the help of Mst. Haseena and also prepared her nude pictures. On returning to senses the victim raised the voice, whereupon, both the accused while showing her nude pictures threatened to upload the same on internet. The accused/appellant continued committing rape with her and transferred her pictures to his mobile phone for the purpose of blackmailing. After two days when her health condition got worst, both the accused left her at Nishtar Hospital, Multan, where from her father and brother took her to the house. Because of intensive mental stress she did not tell anything to them, whereas, accused/appellant constantly threatened her to marry with him. She further narrated that as per her knowledge the pictures which the accused/appellant had shared with her, were still available in the mobile phone of the accused/appellant; ultimately the victim disclosed the entire facts to her parents and along with her complaint she also produced the pictures which the accused/appellant had thrown in her house.

2. After registration of FIR and completion of investigation finally report under section 173 Cr.P.C was submitted against the accused/appellant. When charge sheeted, the accused/appellant denied the charges and claimed to be tried, whereupon, the prosecution examined Mst. Nadia Shaheen (victim) as PW-1; Ghulam Akbar, father of the victim appeared in the dock as PW-2; Shakeela 944/LC (PW-3) who took the victim to hospital for her medical examination; Zafar Iqbal Sub-Inspector (PW-5) and Ghulam Mustafa (PW-7) had investigated the case; Dr. Nasir Javed (PW-6) conducted potency test of the accused/appellant; Waseem Akram Sub-Inspector (PW-9) got issued non-warrants of arrest of the accused following by proclamation and Dr. Nighat Noureen (PW-10) medically examined the victim and rest of the witnesses appeared and made statements about the roles performed by them during the course of investigation. The accused neither opted to appear in the witness box as required by section 340(2) Cr.P.C. nor produced any evidence in defence and the trial ended in his conviction and sentence, as detailed above.

3. Learned counsel for the appellant seeks acquittal on the grounds of delay in FIR, delayed medicolegal examination of victim, un-supporting medical evidence without DNA, sole testimony of victim without corroboration with regard to act of rape. Learned District Public Prosecutor assisted by counsel for the complainant supported the impugned judgment due to trust worthy and confidence inspiring statement of victim, supported by res gestae evidence of her father, medicolegal opinion of old torn hymen being unmarried lady and nude pictures of victim prepared by the appellant wherein he is also visible.

4. Arguments heard. Record perused.

5. Here in the instant case, the prosecution intended to establish the charge against the accused/appellant through the ocular account, medical evidence and the nude pictures of the victim P-1 to P-5, which were allegedly thrown into the house of victim and those which were produced on behalf of the accused/appellant i.e., P-6 to P-10. The ocular account was furnished by Mst. Nadia Shaheen victim/complainant (PW-1) alone, whereas, statements of Ghulam Akbar (PW-2) father of the victim is about post occurrence events, including recovery of nude pictures P-1 to P5 produced before the police and P-6 to P-10 on the information of accused/appellant from his house. Conscious of the fact that the victim/complainant was the solitary witness of the occurrence, we have thoroughly and carefully gone through her statement to dig out that she may have falsely involved the accused/appellant in this case in order to wreck vengeance or it may have been a motivated attempt on the part of the prosecution to level some score against the accused/appellant, but in her examination-in-chief the victim reiterated the story as had been set out in the complaint/FIR and deposed about step by step events in the same sequence. She was subjected to cross-examination at sufficient length but nothing damaging to the prosecution or favourable to the defence could be elicited from her mouth. By tenor of cross-examination the defence tried to bring on record that at one point of time the victim and the accused/appellant were residing in the same village and parents of the accused/appellant as well as victim had friendly relations, thus they both i.e. accused/appellant and the victim, were known to each other. Instead of lending any support to the defence, the admission of the victim on above aspects goes on to strengthen the prosecution's stance as it was the case of prosecution itself that because of such friendly relations the accused/appellant used to visit the house of the victim's parents along with Mst. Haseena Bibi, with whom the victim also developed relations and out of such linkage she left the house along with Mst. Haseena Bibi to make some purchases and fell prey to nefarious activity by the accused/appellant.

6. Since the statement of the victim, direct evidence, has been found to be worthy of credence, confidence inspiring, credible and irrefutable, therefore, even if there is a sole witness, her statement can safely be made basis to record conviction. As to the number of witnesses required to establish a charge, the Supreme Court of Pakistan in the case reported as "Muhammad Mansha v. The State" (2001 SCMR 199) with reference to Article 17(1)(b) of Qanun-e-Shahadat, 1984 held that:-

"7. A bare perusal would reveal that the language as employed in the 'said Article 17(1) (b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to the truth of the case, for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact". (Principles and Digest of the Law of Evidence by M. Monir, page 1458).

The Supreme Court further held that:-

"……..no yardstick can be fixed as to whether statement of a solitary witness must or must not be relied upon for the simple reason that each case has its own peculiar circumstances which shall play a significant role and is motivating factor to determine the reliability of a solitary witness as the said aspect of the matter is to be dilated upon in the light of surrounding circumstances which may be taken into consideration or otherwise. We may mention here that such circumstances also cannot be confined within a limited sphere of any definition because the same may be infinitely diversified by the situation and conduct of the parties concerned. "The only general rule that can be laid down is that the circumstances must be such as would lead the guarded decision of a reasonable and just man to the conclusion".

Thus, the well-recognized maxim remains that 'evidence has to be weighed and not counted' and here in this case as discussed above the ocular testimony though coming through one witness i.e. victim, yet the same is consistent, unimpeachable and confidence inspiring, therefore, is held to be sufficient to establish the charge. Reference may be made to the case reported as "Muhammad Ehsan v. The State" (2006 SCMR 1857). It has been held by Supreme Court in case reported as "Atif Zareef and others v. The State" (PLD 2021 SC 550) that rape victim stands on a high pedestal than an injured witness, because an injured witness gets the injury on physical form while rape victim suffers psychologically and emotionally, and single testimony is sufficient to uphold the conviction.

1. Ghulam Akbar PW-2 father of victim deposed res gestae evidence about condition of victim when he and his son Shahbaz met her in Nishtar Hospital, Multan. PW-2 narrated the situation as under;

"After two days, my daughter Nadia made a call on phone and informed us that she was present in Nishtar Hospital and her condition was bad. I along with my son Shahbaz went to Nishtar Hospital wherefrom, we brought back Mst. Nadia to our home. We kept on asking what had happened with her but she did not tell us anything and used to weep."

Similarly, during cross-examination he responded as under;

"When we had been asking our daughter Mst. Nadia where she was for two days but she started to weep and remained silent. My wife had also been asking about the reason of her weeping but she said nothing to her."

He has also stated the fact of collection of nude pictures from his house allegedly thrown by the appellant, which has a support to prosecution case. He deposed in his examination in chief that we had family relation with accused Abdul Basit and Haseena Bibi co-accused (since PO). He had no axe to grind against the accused/appellant, nor anything was spoken against him by the defence. His support to save her family honour is reflected from the fact that he is pursuing the case and is present before us even in this appeal proceedings.

1. In addition to the above, five nude pictures allegedly thrown by the accused/appellant in the house of the victim, were also produced before the Investigating Officer at the time of registration of case, however, were taken into possession after three days through recovery memo P-1 to P-5 (Ex.PC) and accused also produced similar pictures before the police P-6 to P-10 (Ex.PD) on call from his house. Though no evidence is available that who had produced such pictures from the accused side, likewise it has been admitted by the victim during cross-examination that no one knew that who had thrown the pictures (P-1 to P-5) in her house, but the pictures produced by the complainant party clearly show that first part of the prosecution story stands proved which was to the effect that accused after making nude pictures of the victim started blackmailing for commission of rape with her.

2. We have observed that in one of the nude pictures P-1 to P-5 and P-6 to P-10, the accused/appellant is also visible while sitting with the side of the victim who fell unconscious. The information contained in the picture clearly speaks about the story of the victim that in a condition of unconsciousness her nude pictures were prepared by the accused/appellant, therefore, the question before us is as to whether such pictures could be used as evidence in support of prosecution case. It is trite that an audio/video clip including snaps/photographs as evidence maintains a dual character in the law of evidence; it is termed as document as well as a material thing (physical evidence), also known as real evidence. It does carry information that includes expression, gestures, voice and video; therefore, such clips/snaps are sought to be produced before the Court to prove the 'information' contained in it as evidence of facts recorded therein and oral account of which is to be spoken by a witness and not the document alone. While as material thing it is to be produced for the inspection of court. Principles of evidence relating to admissibility of documents are fully applicable on such type of evidence; permission and sanction of law to bring on record evidence if it is in the form of document is regulated under Article 139 of Qanun-e-Shahadat Order, 1984 (the Order). This Article in the light of illustration therein authorizes the Court to ask, when any witness is making statement about a fact, to support his contention with any document if such fact is incorporated therein. The room for such discretion of Court is obviously reflective of farsighted wisdom of legislature to cater to the requirement of an emerging need of evidence in a particular situation for the purpose of corroboration to fortify or strengthen the deposition; even otherwise best evidence rule says that documentary evidence runs over or defeats the oral evidence under the maxim "res ipsa liquitor". The second status of such evidence is of material thing (physical evidence) or real evidence which is produced for the inspection of Court as ordained in second proviso to Article 71 of The Order: -

"Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection"

Articles 139 and 71 of the Order in detail in this context have been discussed and explained in a case reported as "Numan alias Nomi and others v. The STATE" (2023 P Cr. L J 1394).

1. In a book "THE MODERN LAW OF EVIDENCE (Third edition) by Adrian Keane published by Butterworths (1994), the author while referring to a verdict of Sir Jocelyn Smith P, passed in a case reported as "The Statue of Liberty" [1968] 1 WLR 739 mentions as under;

"It is tempting, on the basis of these words of Sir Jocelyn Smith P, to conclude that photographs and films, the relevance of which can be established by the testimony of someone with personal knowledge of the circumstance in which the photographs or films was taken or made, are admissible items of real evidence and can never give rise to problems of a hearsay nature. If the evidence of a witness to certain events is admissible, it may be reasoned, then photographs or films recording those same events should be no less admissible."

In R v. Cook [1987] 1 All ER 1049 (CA) at page 1054, Watkins LJ has gone so far as to state that photograph, together with the sketch and photofit, are in a class of evidence of their own to which neither the rule against hearsay nor rule against previous consistent or self-serving statements applies.

In R v. Williams (1984) 79 Cr App Rep 220 (CA), the Court of Appeal entertained no doubt that photographs taken by security cameras installed at a building society office at which an armed robbery was attempted, were admissible in evidence, being relevant to the issue of both whether an offence was committed and, if so, who committed it. It seems that it is not necessary to prove that the photographic material is original or an authentic copy; proof that the material relates to the events in question will suffice. Case reported as "The Road We're Travelling On, v. Treacy" [1989] New Law Journal (NLJ) 1079 is referred. In the attending circumstance and on the strength of above case laws, pictures P-1 to P5 can validly be used against the accused/appellant. In the case reported as "Muhammad Zaman v. The State and others" (2014 SCMR 749), the Supreme Court of Pakistan apart from other evidence relied on the pictures produced in evidence during trial and converted acquittal of the accused into their conviction.

1. We have noted that such pictures were put to the accused/appellant during his statement under section 342 Cr.P.C. for seeking his explanation but neither he challenged such pictures in any manner during cross-examination nor gave any explanation in his statement under section 342 Cr.P.C. Silence of the accused/appellant over such an important factor connotes that there was nothing to defend against such nude pictures, thus the requirement of law for using these snaps/pictures is complete as highlighted above and these can safely be used as evidence.

2. Here in this case, undoubtedly, the FIR was registered after almost one and half month of the crime having been committed but such delay in reporting the matter to the police is immaterial in the sense that throughout it has been stance of the victim that her nude pictures were taken by the accused/appellant, she was blackmailed and she fell victim number of times during her captivity under such pressure and fear, therefore, she kept mum in order to save her and the family honour but when her nude pictures were thrown in her house and the matter stood disclosed to family members, she narrated the whole occurrence. Delay in reporting the matter was responded by her during cross examination as under:-

"It is correct that I remained silent for about one and half month after the occurrence and did not get the case registered against the accused. There were thoughts in my mind for reporting the matter to police but due to intimidation of the accused, I abstained."

Another reason for delay in registration of FIR was also deposed by PW-2 in following words:-

"I took my daughter with me to P.S., New Multan and the police of said police station sent us to women police center. For few days, the police had been putting off and ultimately on 21.05.2018, they received application from me which is Exh. P-A."

Thus, victim being an educated lady with qualification of MA English had definitely been thinking hundred times about her family honour as well as her social and practical life before reporting the matter to police. Even otherwise, the fact that the modesty of a virgin girl was violated by sexual assault makes understandable the apprehension of the victim and her family in approaching the police immediately. Delay in reporting the crime to the police in respect of an offence involving a person's honour and reputation which society may view unsympathetically could prey on the minds of a victim and her family and deter them to go to the police. Reliance in this respect is palced on case reported as "Hamid Khan v. The State" (1981 SCMR 448).

1. Though the medical evidence does not contain any fact that sexual act was committed with the victim by force but it is clear from the statement of victim that she was under the effect of intoxication as well as fear of nude pictures, therefore, in either of the situation she could not resist the act of rape, but otherwise, of course the said act of intercourse was against her will and consent, which is the requirement of section 375 P.P.C. During medical examination Dr. Nighat Noureen PW-10 also found hymen of victim as old torn, though she was unmarried but doctor was not even cross examined by the defence about any fact contained in MLR. It is in the evidence that delayed medicolegal examination was due to the reason victim was terrified and this fact she has disclosed, while responding to questions during cross examination, as under;

2025 P Cr. L J 605

[Lahore]

Before Aalia Neelum C.J and Asjad Javaid Ghural, J

Irfan Haider---Apellant

Versus

The State---Respondent

Criminal Appeal No. 12708-J of 2019 and Murder Reference No. 399 of 2018, decided on 4th September, 2024.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of one hour and fifteen minutes in reporting the matter to police---Consequential---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---As per the prosecution case, the incident took place at 03:00 p.m., and soon after the incident, the complainant proceeded to the police station to report the incident to police and he met with Inspector (since dead) at a bridge---Complainant handed over a written complaint at 04:15 p.m. to said Inspector (since dead)---Inordinate delay of one hour and 15 minutes in reporting the incident had not been explained by the prosecution, even though the matter was not reported to police in the police station, and the same was reported at some other place---Delay in lodging the FIR often results in embellishment, a creature of an afterthought---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of witnesses at the time and place of occurrence not proved---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---Injured witness, paternal uncle of the complainant, and deceaseddeposed that after the incident, police reached the place of occurrence---Meaning thereby that till the arrival of police the injured witness was not shifted to the hospital for medical treatment, although he received firearm injuries, thus the injured remained lying injured at the place of occurrence for one hour and 15 minutes---No one bothered to shift the injured to the hospital for medical treatment, which proved that the witnesses were not present at the spot---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Unnatural conduct of witnesses---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---Content of the injury statement revealed that after registration of FIR, the injured witness was taken to the THQ hospital, through Police Constable (not cited as PW) for medical treatment---Medical Officer deposed that on 17.11.2012, the injured witness was brought by Police Constable (not cited as PW)---From the Medico-Legal Certificate of the injured witness also, it was evident that in the column of the name of relative and friend, the name of relatives was not mentioned, but the name of Police Constable (not cited as PW) was mentioned---In the said Medico-Legal Certificate, the timing of arrival and examination had also not been mentioned---In the column of number and date of police docket/Court order FIR No.603 of 2012 was mentioned, which meant that till the registration of FIR, the injured witness was not shifted to the hospital for medical treatment while from the contents of the FIR, it was also revealed that injured was not shifted to the hospital before registration of the FIR---In the FIR, the complainant mentioned that the injured was struggling for life---Conduct of the prosecution witnesses could not be said to be natural---Evidence of the eye-witnesses must stand the test of probability---If theconduct of eye-witnesses was unnatural, doubt was created in the prosecution case, and their oral evidence was not believable---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with dealy weapons, unlawful assembly---Appreciation of evidence---Inquest report lacking details of complainant and eye-witnesses---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---Record showed that the inquest report was not signed by the complainant, and the eye-witness, although they stated that they reached the place of occurrence---If Investigating Officer (since dead) visited and prepared the inquest report and had met with the complainant, and the eye-witness, there was no reason why the details that were found missing from the inquest report should not have been there---Absence of these details indicated that the prosecution story was still in the embryo and had not been given any shape---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Contradictions in the statements of witnesses---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---In the present case, the depositions of the prosecution witnesses revealed that they were not stating the complete truth, and there was a conflict between the statements of the prosecution witnesses---Complainant and the eye-witness in their statements could not answer most of the questions and answered the questions by saying that they did not remember---Such fact created doubt about the presence of the complainant, the injured witness and the eye-witness at the place of occurrence where deceased was done to death, as it was the prosecution case that the injured witness was present at a distance of 1½ acre from the place of occurrence at the time of incident---Complainant deliberately concealed facts from the Court while replying to the question by saying he did not remember, however, the complainant deposed during cross-examination, that his memory was not weak---If the memory of the complainant was not weak, he should have answered each question---Delay in lodging the report, and where the incident was reported and whether the complainant drafted the complaint or someone else, raised considerable doubt regarding the veracity of the evidence of the prosecution witnesses and pointed towards the infirmity of evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with dealy weapons, unlawful assembly---Appreciation of evidence---Delay of ten hours and fifteen minutes in conducting the post-mortem on the dead body of deceased---Consequential---Time of lodging of FIR doubtful---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---Medical Officer conducted a postmortem examination on the dead body of the deceased on 18.11.2012---Medical Officer had not deposed the time when he conducted the postmortem examination on the dead body of the deceased---On perusal of the postmortem report, it was revealed that the dead body was received in the dead house on 18.11.2012 at 02:00 a.m., complete documents and police papers were received at 02:00 a.m., and an autopsy was conducted at 02:15 a.m. on 18.11.2012---Record revealed that the postmortem was conducted with a delay of ten hours from the time of reporting the incident to the police---Identifier of the dead body of the deceased deposed during cross-examination that at about 04:00 p.m., the dead body of the deceased was shifted to the THQ Hospital---If the dead body was moved to the hospital for postmortem examination at 04:00 p.m., then there was a delay of 10 hours and 15 minutes in conducting postmortem examination---Inspector (since dead) received the written complaint at 04:15 p.m. on 17.11.2012---Prosecution witnesses did not explain the delay in conducting the postmortem examination---Medical Officer deposed that the time elapse between death and postmortem was 15 hours, meaning that death occurred between 11:15 a.m. on 17.11.2012 and 02:15 a.m. on 18.11.2012---Thus, this proved that the death occurred sometime after 11:15 a.m. on 17.11.2012 onward---Such circumstances suggested that the FIR was ante-timed---Delay in conducting the postmortem examination also led to the conclusion that the FIR was not recorded when claimed to have been recorded---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with dealy weapons, unlawful assembly---Appreciation of evidence---Ocular account and medical evidence---Confliction---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---As per the ocular account, the deceased died on 17.11.2012 at 03:00 p.m. whereas, as per the postmortem report, the deceased died within 15 hours from the time of postmortem examination---There was an apparent conflict between ocular account and medical evidence in such a situation---Facts suggested that the occurrence did not take place as stated by the prosecution witnesses---Medical Officer also observed that rigor mortis was present on the dead body of deceased---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with dealy weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from accused---Inconsequential---Withholding material evidence---Accused were charged for committing murder of the brother of complainant by firing and also causing firearm injury to his uncle---As per the prosecution case, the appellant was armed with 44 bore rifle at the time of occurrence---Four metallic foreign bodies were removed from dead body during autopsy, and same were handed over by Medical Officer to police but they were not compared with rifle statedly recovered from the appellant to confirm the nature of firearm weapon used for causing injuries---Said omission would go against the prosecution under Art.129(g) of the Qanun-e-Shahadat, 1984---Moreover, the report of Forensic Science Laboratory was only to the effect that the weapon allegedly recovered from the accused/appellant was in mechanical operating condition---So, the recovery of the weapon from the accused was of no consequence---Appeal against conviction was allowed, in circumstances.

Mian Shah Abbas for Appellant.

Tariq Siddique, Additional Prosecutor General for the State.

Muhammad Abid Hussain Saqi, Shahid Mehmood Chaudhary and Faisal Amin for the Complainant.

Date of hearing: 4th September, 2024.

Judgment

Aalia Neelum, C.J.---The appellant-Irfan Haider, son of Tasleem Haider, Caste Syed, resident of Mouza Khaki Lakhi, Tehsil Shorkot, District Jhang, was involved in case FIR No.603 of 2012, dated 17.11.2012, registered under Sections 302, 324, 148, 149 P.P.C., at P.S. Shorkot City, District Jhang and was tried by the learned Additional Sessions Judge, Shorkot. The trial court seized with the matter in terms of the judgment dated 20.12.2018, convicted Irfan Haider (the appellant) under Section 302(b) P.P.C., and sentenced to Death as Tazir for committing Qatl-e-Amd of Ghulam Haider (the deceased), with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I further.

1. Feeling aggrieved by the trial court's judgment, Irfan Haider, the appellant, has assailed his conviction and sentence by filing the instant jail appeal bearing Criminal Appeal No.12708-J of 2019. The trial court also referred the M.R. No.399 of 2018 (The State v. Irfan Haider) to confirm the death sentence awarded to the appellant-Irfan Haider. Both the matters arising from the same judgment of the trial court 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 Zafar Abbas (PW-6)-the complainant, is that on 17.11.2012, at about 02:15 p.m., the complainant (PW-6) along with his brothers namely, Ghulam Haider (since dead) and Muhammad Jabir were busy in making arrangements of majlis at Darbar Syed Ahmad Ali Shah, situated at Mouza Tatthi Ailchi. In the meanwhile, the accused, Irfan Haider along with his co-accused persons, equipped with lethal weapons, while riding on four motorcycles came at the place of occurrence. After that, the accused persons, Dabeer Husain, Israr Hussain, Aftab Hussain, Ahmad Raza, Qaisar Abbas, Irfan Haider, and Tahir Abbas, pointed their respective weapons toward them while the remaining accused persons started to raise the construction of the house and four walls. The complainant and his brothers came there and restrained the accused persons from doing so. At about 03:00 p.m., when they insisted the accused persons to restrain from said work, then the accused persons asked their co-accused to murder the complainant party, whereupon, the accused, Ahmad Raza fired at Ghulam Haider (since dead), which hit him at his left thigh, the accused, Qaisar Abbas made a fire shot which landed on the left side of the abdomen of Ghulam Haider (since dead), and accused, Irfan Haider made a riffle burst, which hit on the chest of Ghulam Haider (since dead), who fell down and succumbed to the injuries. The accused, Tahir Abbas, made a fire shot, which hit Liaqat Ali (uncle of the complainant, injured PW) at the upper side of his left thigh. After the alleged occurrence, the accused persons fled away from the place of occurrence. The motive behind the occurrence was a land dispute where the accused persons started construction on the day of the alleged occurrence. Syed Karam Hussain donated the said land for "Janazgah."

3. After the incident, the complainant reported the matter to the police through his written application (Ex. PA). After that, formal FIR (Ex.PA/1) was chalked out by Muhammad Riaz, 745/Head Constable (PW-1). After registering the case, the investigation was entrusted to Muhammad Riaz, Inspector (since dead), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. Muhammad Afzal, S.I appeared in the witness box as (PW-9) and identified the handwriting of Muhammad Riaz, Inspector (since dead)-the investigating officer. On 04.08.2017, 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 eleven (11) witnesses. Ishtiaq Rasul, the Inspector, appeared in the witness box as CW-1.

4. The ocular account, in this case, has come out from the statements of Zafar Abbas (PW-6)-the complainant, Liaqat, injured PW (PW-7), and Muhammad Jabir (PW-8)-the eye-witness, whereas Dr. Muhammad Naeem (PW-2), who conducted the postmortem examination of Ghulam Haider (the deceased) found the following injuries on his person:

INJURIES

1. Six firearm entrance wounds, each measuring 0.8 cm x 0.8 cm x DNP, on the front of the chest and upper abdomen.

2-A. A firearm entrance wound 0.8 cm x 0.8 cm through and through on the right front side of the abdomen and 10 cm away from the umbilicus.

2-B. A firearm exit wound 1.2 cm x 1 cm on the right flank, 2 cm above the right iliac crest.

3-A. A firearm entrance 0.8 cm x 0.8 cm x through and through on the front of the left thigh at its middle.

3-B. A firearm exit wound 1.2 cm x 1 cm on the back of the left thigh, 9 cm from the left knee joint.

After conducting the postmortem examination, the doctor opined that death was caused by shock hemorrhage and injuries to vital organs (heart, lung, liver), which were sufficient to cause death in the ordinary course of nature (Injury No.1). Firearms caused all the injuries and were ante-mortem. The probable time between injuries and death was within minutes, whereas between death and postmortem, it was within 15 hours.

Dr. Safdar Abbas appeared in the witness box as PW-4 and stated that he was familiar with the handwriting and signatures of Dr. Qaisar Abbas (since dead), who medically examined Liaqat Ali, injured PW. He also stated that a Medicolegal Certificate was issued by Dr. Qaisar Abbas (since dead) dated 17.11.2012.

1. The learned Deputy District Public Prosecutor gave up PWs Rustam, Ishtiaq Rasul, Hamid Hussain, and Ahmad Sher, S.I being unnecessary, Lal Khan and Zawar Hussain 482/C being dead, and closed the prosecution evidence after tendering reports of Punjab Forensic Science Agency (Ex. PMM and Ex. PLL). Learned counsel for the complainant also tendered certified copies of private complaint (Ex. PFF), statements of Ahmad Sher, S.I, Hamid Hussain, DSP, Ishtiaq Rasul, Inspector, and Gulfam Hussain (Ex. PGG, Ex. PHH, Ex. PJJ and Ex. PKK).

2. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he refused to appear as his own witness in terms of Section 340(2) Cr.P.C.; however, he opted to produce evidence in his defence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition: -

"I have close relations with Dabeer Hussain Shah (nephew) who has ex-enmity with complainant party due to this reason complainant got registered this case against me. Complainant and PWs falsely involved me in this case."

In documentary evidence, the accused tendered certain documents, i.e., Ex. DA to Exh. DO.

1. After evaluating the evidence available on record and considering 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 and sentence in the above terms.

2. We have carefully considered both sides' rival submissions and minutely reviewed the evidence on record.

3. In the instant case, the occurrence took place on 17.11.2012 at 03:00 p.m. Zafar Abbas (PW-6)-the complainant and brother of Ghulam Haider (the deceased), informed the police about the occurrence at 04:15 p.m. through written application (Ex. PA) at Lakhi Pull Tehsil Shorkot District Jhang to Muhammad Riaz Inspector (since dead), who sent the written complaint (Ex. PA) through Muhammad Akram 772/C (not cited as PW) for lodging of criminal case. Based on the written complaint (Ex. PA), Muhammad Riaz 745/H.C (PW-1) chalked out FIR (Ex.PA/1) at 04:45 p.m. The distance between the place of occurrence and the police station is 16 kilometers. Zafar Abbas (PW-6)-the complainant deposed during examination-in-chief that: -

"Through mobile phone, I informed the occurrence to the police. After that, I proceeded to Shorkot for filing application to the police for registration of case. At Lakhi Pul, I met Mehr Riaz Inspector to whom I submitted the application Exh.PA, on the basis of which the FIR was registered. After it, the police reached the place occurrence, seized the dead body and also took into possession the blood stained earth."

Liaqat (PW-7)-injured PW and paternal uncle of the complainant, deposed during examination-in-chief that:-

"I fell down and became unconscious. After that, the police reached the place of occurrence and I was taken to the THQ Hospital, Shorkot where the doctor examined me and issued medical certificate.

Muhammad Jabir (PW-8)-eye-witness and brother of the complainant, deposed during examination-in-chief that: -

"My brother Zafar Abbas went to Shorkot City for reporting the occurrence to the police. The police reached the place of occurrence, examined the dead body and shifted the dead body and injured person to the THQ Hospital, Shorkot.

As per the prosecution case, the incident took place at 03:00 p.m., and soon after the incident, Zafar Abbas (PW-6)-the complainant, proceeded to the police station to report the incident to police and Zafar Abbas (PW-6)-the complainant met with Muhammad Riaz Inspector (since dead) at Lakhi Pull. Zafar Abbas (PW-6)-the complainant handed over a written complaint (Ex. PA) at 04:15 p.m. to Muhammad Riaz, Inspector (since dead). The inordinate delay of one hour and 15 minutes in reporting the incident has not been explained by the prosecution, even though the matter was not reported to police in the police station, and the same was reported at Lakhi Pull. Delay in lodging the FIR often results in embellishment, a creature of an afterthought. This view is further strengthened by the testimony of Liaqat (PW-7)-the injured witness, paternal uncle of the complainant, and deceased. He (PW-7) deposed that after the incident, police reached the place of occurrence. It means that till the arrival of police Liaqat (PW-7)-the injured witness was not shifted to the hospital for medical treatment, although he received firearm injuries; this means that the injured remained lying injured at the place of occurrence for one hour and 15 minutes, and no one bothered to shift the injured to the hospital for medical treatment, which proves that the witnesses were not present at the spot. The content of the injury statement (Ex. PF/2) reveals that after registration of FIR (Ex. PA/1), Liaqat (PW-7)-the injured PW, was taken to the THQ hospital, Shorkot, through Najam Abbas 1893/C (not cited as PW) for medical treatment. The scanned copy of the injury statement (Ex. PF/2) is reproduced hereinunder: -

Dr. Safdar Abbas (PW-4) appeared and tendered secondary evidence as Dr. Qaisar Abbas, who medically examined Liaqat Ali (PW-7), had died. Dr. Safdar Abbas (PW-4) deposed that on 17.11.2012, the injured PW was brought by Najam Abbas 1893/C (not cited as PW). From the MLC (Ex. PF) of Liaqat Ali (PW-7)-the injured witness also, it is evident that in the column of the name of relative and friend, the name of relative(s) is not mentioned, but the name of Najam Abbas 1893/C (not cited as PW) is mentioned. In the said MLC (Ex. PF), the timing of arrival and examination has also not been mentioned. In the column of No. and date of police docket/court order FIR No.603 of 2012 was mentioned, which means till the registration of FIR (Ex. PA/1) Liaqat (PW-7)-the injured witness was not shifted to the hospital for medical treatment while from the contents of the FIR (Ex. PA/1), it also reveals that injured was not shifted to the hospital before registration of the FIR (Ex. PA/1). In the FIR (Ex. PA/1), the complainant mentioned that the injured was in the struggle for life and death. Dr. Safdar Abbas (PW-4) admitted during the cross-examination that: -

"It is correct that Exh.PG/1 is attested carbon copy of original copy. --------It is correct that original copy of final report is not available on the record. ----------I have not mentioned in my report Exh.PG/1 that there was no possibility of fabrication. Confronted with the earlier statement recorded on 16.11.2016 in the court of Judge Ghulam Mujtaba Baloch, ASJ Shorkot where the possibility of fabrication is mentioned."

The conduct of the prosecution witnesses cannot be said to be natural. Even the evidence of the eye-witnesses must stand the test of probability. If their conduct is unnatural, doubt is created about the prosecution case, and their oral evidence is not believable. Muhammad Imran (PW-11), who identified the dead body of the deceased, deposed during cross-examination that: -

"My house is situated at a distance of four squares from the place of occurrence. I came to know about the occurrence at 03:00 pm on hearing firing. At about 04:00 pm, the dead body of Ghulam Haider was shifted to the THQ Hospital, Shorkot. ----------The Investigating Officer was also present there. The complainant Zafar Abbas was also there. At the time of reaching the dead body of Ghulam Haider (deceased) the doctor was already present there. The police recorded my statement under Section 161 Cr.P.C at the police station on the next morning."

In column No.3 of the inquest report (Ex. PD), the investigating officer mentioned the date and time of receiving information of the death as "17.11.2012 at about 03:00 p.m.". In column No.4, the names of witnesses who identified the dead body are written as "Laal Khan and Muhammad Imran." Whereas, on the last page of the inquest report (Ex. PD), the place and time where the inquest report (Ex. PD) was prepared has been left blank. The names of the witnesses were mentioned as Nazim Hussain and Makhdoom Ali Shah. Zafar Abbas (PW-6)-the complainant deposed during examination-in-chief that: -

"On 16.11.2012 I got recorded my statement before the court of Rana Abdul Ghaffar, learned Judicial Magistrate, Shorkot. I do not remember whether Makhdum Ali was also got recorded his statement before the said Magistrate. I do not remember that Makhdum Ali Shah was co-accused in that case and also got recorded his statement. I do not remember whether I got recorded that I have no concern with the land situated in square No. 15, killa No. 14/2 consisting of one Kanal in Thatti Ailchi Tehsil Shorkot, District Jhang. I do not remember whether I requested apology from Dabeer Shah. I do not remember whether I got recorded that we shall not tease Dabeer Shah in future. Makhdum Ali Shah was not present at the time of occurrence at the place of occurrence. I do not remember where Makhdum Ali Shah was present at that time. I do not remember that I connected him through telephone at that time to inform him that accused persons occupied his land."

It does not appeal to reason that a person who deposed that his memory is not weak would not remember such apparent details relating to the presence of Makhdum Ali Shah at the place and time of occurrence, who was his co-accused in the case registered against them. The name of Makhdoom Ali Shah is mentioned on the last page of the inquest report (Ex. PD), which suggests that Makhdum Ali Shah was present at the place of the occurrence when the inquest report was prepared. The inquest report (Ex. PD) is not signed by Zafar Abbas (PW-6), the complainant, and Muhammad Jabir (PW-8), the eye-witness, although they stated that they reached the place of occurrence in their presence. If investigating officer Muhammad Riaz Inspector (since dead) visited and prepared the inquest report (Ex. PD) and had met with Zafar Abbas (PW-6), the complainant, and Muhammad Jabir (PW-8), the eye-witness, there is no reason why the details that I have found missing from the inquest report (Ex. PD) should not have been there. 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 recorded later after due deliberations and consultations. The second external check, equally important, is the sending of a copy of the FIR along with the dead body for postmortem examination and its reference in the inquest report (Ex. PD). The absence of these details in the inquest reports may indicate that the FIR was not registered and was recorded later after due deliberations and consultation. The relevant portion of the inquest report (Ex. PD) is reproduced hereinunder: -

Dr. Muhammad Naeem (PW-2) deposed during examination-in-chief that: -

"I also prepared the sketches of injuries which are Ex.P.B/1 and Ex.P.B/2. I put my signature on injury statement EX.P-C. I also put my signature on the inquest report EXP-D."

I have to scrutinize whether there has been a real delay in lodging the FIR or whether that creates a dent in the prosecution version. The complaint and FIR have been exhibited as Ex.PA and Ex.PA/1. It reveals that the prosecution witnesses, Zafar Abbas (PW-6), the complainant, and Muhammad Jabir (PW-8), were not present at the time when the inquest on the dead body was prepared. It also gets support from the fact that Zafar Abbas (PW-6)-the complainant deposed during examination-in-chief that: -

"On 17.11.2012, at about 02:15 pm, I along with my brothers Ghulam Haider, Muhammad Jabir and my uncle Liaqat were busy in arranging "Majlis" at Darbar Baba Syed Ahmad Ali Shah."

Zafar Abbas (PW-6)-the complainant has made dishonest improvements in his statement before the court, and the defense confronted the statement made by the complainant (PW-6). Zafar Abbas (PW-6)-the complainant deposed during cross-examination as under: -

"I got recorded in FIR that I along with Ghulam Haider, Muhammad Jabir and Liaqat were busy arranging Majlis at Darbar Ahmad Ali Shah. Confronted with FIR (Exh.P.A/1) wherein it is so recorded. I do not remember whether I got mentioned in the FIR that my uncle Liaqat was present at a distance of 1½ from the place of occurrence. -------------I had got recorded my cursory statement in private complaint on 21.12.2013. I do not remember whether I got recorded in that statement that my uncle Liaqat was at a distance of 1 ½ acre when the occurrence took place."

Liaqat (PW-7)-the injured PW deposed during cross-examination that: -

"At the time of first fire, I was present at the place of occurrence. Confronted with Exh: D.A wherein it is mentioned that I was present at a distance of 1 ½ acre from the place of occurrence."

Muhammad Jabir (PW-8)-the eye-witness deposed during cross-examination that: -

"I do not remember whether in my previous cursory statement recorded in private complaint that my uncle Liaqat was present at distance of 1 ½ acre from the place of occurrence at the time of occurrence. The police recorded my statement. I do not remember whether I got recorded in my statement under section 161, Cr.P.C. Liaqat PW was present at distance of 1 ½ acre from the place of occurrence."

Contrary to the above, Zafar Abbas (PW-6)-the complainant deposed during cross-examination that: -

"My uncle Liaqat came at the spot at 10:00 am. PW volunteers he came there before. The witness Jabir was already was present at the place of occurrence when I reached there."

Liaqat (PW-7)-injured PW deposed during cross-examination that: -

"I reached the Darbar at 08:00/09:00 am and others also reached at the same time."

Muhammad Jabir (PW-8)-the eye-witness deposed during cross-examination that: -

"I along with Liaqat, Zafar Abbas and Ghulam Haider reached at the spot on the same time. I do not remember at what time I reached the place of occurrence. I do not remember in my earlier statement that I reached the place of occurrence at about 02:15 pm."

The above depositions of the prosecution witnesses reveal that they are not stating the complete truth, and there is a conflict between the statements of the prosecution witnesses. However, Zafar Abbas (PW-6)-the complainant, and Muhammad Jabir (PW-8)-the eye-witness in their statements, could not answer most of the questions, and these witnesses answered the questions by saying, "I do not remember."

This creates doubt about the presence of Zafar Abbas (PW-6)-the complainant; Liaqat (PW-7)-the injured PW; and Muhammad Jabir (PW-8)-the eye-witness at the place of occurrence where Ghulam Haider deceased was done to death, as it was the prosecution case that Liaqat (PW-7) was present at a distance of 1½ acre from the place of occurrence at the time of occurrence.

1. On the complaint (Ex. PA), FIR (Ex.PA/1) was chalked out by Muhammad Riaz 745/H.C. at 04:45 p.m. The written complaint (Ex. PA) reveals that the same was submitted by Zafar Abbas (PW-6)-the complainant. During cross-examination, he (PW-6) deposed that: -

"I do not remember the name of scribe of FIR. I do not remember whether I got recorded in my previous cross-examination I got drafted application for registration policemen outside the police station."

Zafar Abbas (PW-6)-the complainant deliberately concealed the fact from the court while replying to the question he does not remember. However, he (PW-6) deposed during cross-examination, saying, "My memory is not weak." If his memory is not weak, he should answer each question. The delay in lodging the report, where the incident was reported, and whether the complainant drafted the complaint or someone else raises considerable doubt regarding the veracity of the evidence of the prosecution witnesses and points toward the infirmity of evidence. It renders it unsafe to base convictions on it.

1. It has been further noticed that Dr. Muhammad Naeem (PW-2) conducted a postmortem examination on the dead body of the deceased on 18.11.2012. However, Dr. Muhammad Naeem (PW-2) has not deposed the time when he conducted the postmortem examination on the dead body of Ghulam Haider (the deceased). On perusal of the postmortem report (Ex. PB), it reveals that the dead body was received in the dead house on 18.11.2012 at 02:00 a.m., complete documents and police papers were received at 02:00 a.m., and an autopsy was conducted at 02:15 a.m. on 18.11.2012. It reveals that the postmortem was conducted with a delay of ten hours from the time of reporting the incident to the police. Muhammad Imran (PW-11), who identified the dead body of the deceased, deposed during cross-examination that, at about 04:00 p.m., the dead body of Ghulam Haider was shifted to the THQ Hospital, Shorkot. If the dead body was moved to the hospital for postmortem examination at 04:00 p.m., then there is a delay of 10 hours and 15 minutes in conducting postmortem examination. However, Mehar Riaz, Inspector (since dead), received the written complaint (Ex. PA) at 04:15 p.m. on 17.11.2012. The prosecution witnesses did not explain the delay in conducting the postmortem examination. The fact, however, remains that the postmortem was delayed for ten hours and 15 minutes from the time of reporting the incident. If we took time, as Dr. Muhammad Naeem (PW-2) deposed, that the time elapsed between death and postmortem was 15 hours, then the time becomes between 11:15 a.m. on 17.11.2012 and 02:15 a.m. on 18.11.2012. Thus, this proves that the death occurred sometime after 11:15 a.m. on 17.11.2012 onward. These circumstances, to our mind, suggest that the FIR was ante-timed. Dr. Muhammad Naeem (PW-2) deposed during cross-examination that: -

"As soon as the dead body was received by me I proceeded with the autopsy without any loss of time on my part after reading the police papers.---------As soon as dead body was handed over to me for post mortem examination after completion of record I conducted post mortem examination."

The delay in conducting the postmortem examination also leads to the conclusion that the FIR was recorded with the delay, and the FIR was not recorded when claimed to have been recorded. Considering all these facts, we have no hesitation in concluding that the prosecution has not been able to prove on the record that the incident was reported when it was claimed to have been recorded. The conclusion is inescapable: The prosecution has been unable to establish the case against the appellant beyond reasonable doubt, and no circumstances connect him with the alleged crime.

1. As per the ocular account, Ghulam Haider (the deceased) died on 17.11.2012 at 03:00 p.m. whereas, as per the postmortem report (Ex. PB), the deceased died within 15 hours from the time of postmortem examination. Therefore, there is an apparent conflict between ocular account and medical evidence in such a situation. It also suggests that the occurrence did not take place as stated by the prosecution witnesses. The doctor also observed that rigor mortis was present on the dead body of Ghulam Haider. As per the prosecution case, the appellant was armed with 44 bore rifle at the time of occurrence, four metallic foreign bodies were removed from dead body during autopsy, same were handed over by doctor to police but not got compared from rifle statedly recovered from the appellant to confirm the nature of firearm weapon used for causing injuries and said omission goes against the prosecution under Article 129(g) of the Qanun-e-Shahadat Order, 1984. In the inquest report (Ex.PD), in column No.12, the investigating officer (since dead) mentioned that the cause of injuries was the result of torture as well as a firearm; similarly, four incisions each measuring 2.5 x 1 cm on the body of deceased were noted by doctor in the postmortem examination report (Ex.PB), which have not been explained in ocular account by the prosecution. This also negates the presence of the prosecution witnesses at the place of occurrence at the time of occurrence.

2. The report of Forensic Science Laboratory, Punjab, Lahore (Ex. PLL) is only to the effect that the weapon allegedly recovered from the accused/appellant-Irfan Haider, was in mechanical operating condition. So, the recovery of the weapon from the accused, Irfan Haider, is of no consequence. Accordingly, the appellant deserves to be given the benefit of the doubt, and findings in this regard are to be set aside, and the same are set aside.

2025 P Cr. L J 627

[Lahore]

Before Muhammad Amjad Rafiq, J

Naveed Tariq and another---Petitioners

Versus

The State and another---Respondents

Crl. Misc. No. 38478-B of 2024, decided on 25th June, 2024.

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

----S. 497---Punjab Animal Slaughter Control Act (III of 1963), Ss.3, 3-A & 8(2)---Punjab Food Authority Act (XVI of 2011) , Ss. 22-A & 24---Restriction on slaughter of animals---Bail, refusal of---Offence by large scale manufacturers---Unsafe food ---Possession of dead meat---Culpability under the Punjab Animal Slaughter Control Act, 1963---Scope ---Food Safety Team, inspected a vehicle driven by the petitioners (two in number) and found 15 mounds/600 kilograms meat unfit for human consumption---Petitioners could not produce any record of sale and purchase of said meat nor any agreement or delivery challan in that respect during inspection---Validity---Record (statements of veterinary doctor as well as food safety officers, vehicle carrying dead meat, Destruction Form) and non-provision of relevant documents (like sale purchase record of said meat or agreement for delivery or transportation to a certain food point or certificate from a slaughter house) clearly indicated the criminal liability of the petitioners, not only under penal provisions of Punjab Food Authority Act, 2011, but also under the provisions of the Punjab Animals Slaughter Control Act, 1963 (' the Act 1963') also---Section 8(2) of the Act 1963 prescribes punishment, with imprisonment which may extend to eight years but which shall not be less than four years and with fine which may extend to five hundred thousand rupees but which shall not be less than three hundred thousand rupees---Thus, if the allegations are not rebutted, the Court shall not wait for formal proof rather presume the commission of offence under provision as reflected from S. 3A of the Act 1963 so as to punish the offenders ---Bail was refused to the accused , in circumstances.

(b) Punjab Animal Slaughter Control Act (III of 1963)---

----Ss.3 & 3-A---Presumption of offence---Under the Punjab Animals Slaughter Control Act, 1963, Courts are authorized to presume the commission of offences as reflected from S.3A of the Act 1963.

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

----S. 497---Punjab Animal Slaughter Control Act (III of 1963) , Ss.3, 3-A & 8(2)---Punjab Food Authority Act ( XVI of 2011), Ss. 22-A & 24---Possession of dead meat---Bail, refusal of---Culpability under the Punjab Animal Slaughter Control Act, 1963 ---Food Safety Team inspected a vehicle driven by the petitioners and found 15 mounds/600 Kilograms meat unfit for human consumption---Petitioners could not produce any record of sale and purchase of said meat nor any agreement or delivery challan in that respect during inspection---Validity---Record (statements of veterinary doctor as well as food safety officers, vehicle carrying dead meat, Destruction Form) and non-provision of relevant documents (like sale purchase record of said meat or agreement for delivery or transportation to a certain food point or certificate from a slaughter house) clearly indicated the criminal liability of the petitioners---It is trite that while dealing with bail petition Court can consider as to what offence is made out from facts and circumstance of the case---Bail was refused to the accused , in circumstances.

Muhammad Waqas v. The State 2002 SCMR 1370 ref.

(d) Punjab Animal Slaughter Control Act (III of 1963) ---

----Ss. 10, 3, 3-A & 8(2)---Reward to informer---Section 3(3) of the Punjab Animals Slaughter Control Act, 1963 (' the Act 1963') ) describes offence while S.8(2) of the Act 1963 prescribes punishment with imprisonment which may extend to eight years but which shall not be less than four years and with fine ---Said offence under the Act is so serious that for its prevention government has proposed a reward under S.10 of the Act for providing information about commission of such offence.

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

----S.497---Punjab Animal Slaughter Control Act (II of 1963), Ss.3, 3-A & 8(2)---Possession of dead meat---Bail, refusal of---Scope---There was serious allegations against the petitioners and eye-winking of such offence would open a gateway for such elements to play with the health of citizens---Some of the diseases afflicted due to consumption of such items last for years and even death but on the other hand healthy meat is safer to eat, it enhances metabolism, tastes better, is more hygienic and improves immune system, therefore, by all means, offences committed by the petitioners are against the society at large and a quantity of 15 mounds/600 kilograms dead meat cannot be planted to set up a fake case against the petitioners---Bail was refused to the accused , in circumstances.

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

----S. 497---Punjab Animal Slaughter Control Act (III of 1963), Ss.3, 3-A & 8(2)---Punjab Food Authority Act (XVI of 2011), Ss. 22-A & 24---Possession of dead meat---Bail, refusal of---Culpability under the Punjab Animal Slaughter Control Act, 1963---Non-bailable offences---Offence organist society at larger---Food Safety team inspected a vehicle driven by the petitioners and found 15 mounds/600 kilograms meat unfit for human consumption---Petitioners could not produce any record of sale and purchase of said meat nor any agreement or delivery challan in that respect during inspection ---Validity---Though the offences-in-question did not fall within the prohibitory clause of S.497, Cr.P.C. but it is not the rule of thumb to grant bail to accused in offences not falling within such category as a matter of right if the case falls in exceptions like offence against society---From the material evaluated tentatively, no 'reasonable grounds' as contemplated in S.497(2), Cr.P.C., were available to extend the concession of bail---Bail was declined to the accused, in circumstances.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Rashad Imran v. The State and another 2022 SCMR 1304; Umer Khan v. The State and another 2022 SCMR 216; Allah Yar and 4 others v. The State and another 2023 PCr.LJ Note 60 and Irfan Sarwar v. The State 2022 PCr.LJ Note 71 ref.

Shameem Ahmad Pervez for Petitioners.

Muhammad Usman Saleem Chaudhary, Legal Advisor Food Authority.

Ms. Asmat Parveen, Deputy District Public Prosecutor for the State.

Order

Muhammad Amjad Rafiq, J.---Through this petition under Section 497 Cr.P.C., petitioners seek bail after arrest in case FIR No. 1320 dated 16.05.2024 registered at Police Station Thekriwala, District Faisalabad for non-bailable offences under sections 22-A (punishable up to five years' imprisonment) and 24 (in this case 6 months' imprisonment) of the Punjab Food Authority Act, 2011.

1. As per prosecution story, on 16.05.2024 at about 03:00 p.m., Food Safety team inspected a vehicle bearing registration No.8789-CAR and found 15 mounds/600 Kilograms meat which was checked by Veterinary Officer Livestock Dr. Robi Tabassum and declared it as unfit for human consumption; petitioners could not produce any record of sale and purchase of said meat nor any agreement or delivery challan in this respect during inspection; quantity of dead meat was suspected to be transported at different food points; resultantly was destroyed by the Food Safety team at the spot.

2. Learned counsel for the petitioners contends that allegations levelled against the petitioners are false because they have been dealing with supply of meat for the last about 15/20 years with no complaint whatsoever in this regard and on the day, they were also carrying fresh meat with verified stamp of Incharge slaughter house; further states that offences do not fall within the prohibitory clause of section 497 Cr.P.C., and bail in such like offences is a rule. Learned counsel for the petitioners, however could not substantiate his arguments through any document on record.

3. Learned legal advisor for Punjab Food Authority opposed the bail with the submissions that the crime committed by the petitioners is not only inhuman but also against the society putting the lives of masses at stake. It is learnt that in routine such dead meat is reportedly used in restaurants, banquets, food kiosks and on renowned Shawarma points. Learned Deputy District Public Prosecutor has also opposed the bail on the ground that Destruction Form prepared by the food safety team was also handed over to the petitioners at the site leaving no chance of misstatement so as to provide a clue in favour of the petitioners that they were carrying healthy meat. Further stated that not falling in prohibitory clause does not provide premium to petitioners to seek bail in offences which are considered against the society.

4. Heard; record perused.

5. The material in the form of statements of veterinary doctor and food safety officers, vehicle carrying dead meat, Destruction Form, and non-provision of sale purchase record of said meat or agreement for delivery or transportation to a certain food point or certificate from a slaughter house, clearly indicate the criminal liability of the petitioners, not only under penal provisions of Punjab Food Authority Act, 2011 but under the provisions of the Punjab Animals Slaughter Control Act, 1963 (the Act). According to section 3(3) of the Act, a person shall not:

(a) sell, keep, store, transport, supply, offer or expose for sale, or hawk any meat or carcass of a:

(i) haram animal or of an animal which died of, or has suffered from contagious diseases or has been poisoned to death, or died because of gunshot wound or electrocution;

(ii) meat or carcass of any animal which has been slaughtered in contravention of this Act or does not bear the stamp, mark, tag or certification of the slaughter-house specified by the concerned local authority;

Section-8 (2) of said Act prescribes the sentence of offence as under;

"If a person contravenes any provision of clause (a) of subsection (3) of section 3, he shall be punished with imprisonment which may extend to eight years but which shall not be less than four years and with fine which may extend to five hundred thousand rupees but which shall not be less than three hundred thousand rupees."

(Emphasis supplied)

Under the Punjab Animals Slaughter Control Act, 1963, Courts are authorized to presume the commission of offences as reflected from following provision;

3A. Presumptions.- In every prosecution under this Act, the court shall presume that any:

(a) meat or carcass found in possession of any person who is, or has been, habitually selling, keeping, storing, transporting, offering or exposing for sale, or hawking the meat or carcass, was being sold, kept, stored, transported, offered or exposed for sale or hawked by such person;

(b) meat or carcass which does not bear the stamp, mark, tag or certification of a slaughter-house has been slaughtered in contravention of the Act.

Thus, if the allegations are not rebutted, the Court shall not wait for formal proof rather presume the commission of offence so as to punish the offenders.

2025 P Cr. L J 672

[Lahore]

Before Tariq Saleem Sheikh, J