PLJ 1984 Judgments

PLJ 1984 Cr PLJ 1984 Cr. C. (Karachi) 204 fSukkur Bench] Present : MUNAWAR ALI KHAN, J ALI GOHAR and 3 Others—Appellants versus THE STATE—Respondent Cr. Appl. No. 37 of 1983, decided on 24-11-1983. (i) Criminal Trial— .

Eye-witness—Testimony of—Name of witness not appearing i» FIR—Witness, apparently coming to vardat after occurrence and as such, his testimony to be believed to that extent only—[Evidence]. [P. 208] A PLD 1956 (W.P.) Lah. 840 ref. (ii) Criminal Trial—

Witness—Interested and related—Statement—Discarding of—- Held: Interested ness of witness alone not to be enough to discard his evidence—[Evidence]. [P. 210] 3 1982 SCMR 178; PLD 1960 SC (Pak.) 387 ; PLJ 1977 SC4S2 & PLJ 1977 SC 278 ref. (Hi) Criminal Trial—

Witness, interested and related—Testimony of— Held : In case of witness being interested and related, Court to be put on guard so that in presence of tainted evidence it should be extra cautious in its-evaluation— Held farther : Court in such case to look for all such material on record which may enable it to arrive at correct conclu^ sion as to truth or falsity of evidence. [P. 210] C (iv) Criminal Trial— __—Witness—Independent witness—Presence of near place of occurrence- Non-examination of such witness—Effect of—Several independent wit-- nesses admittedly present near place of vardat —Police not producing any of them as witness—Held : Merely because of no independent witness having been examined, evidence of eye-witnesses not to be doubted or disbelieved. [Pp. 120 & 211] D & E () Criminal Trial—

Witness—Independent witness—Non-examination of—Prosecution case proved by other evidence—Held : Non-examination of indepen­dent witness, not to be permitted to adversely affect prosecution case [Evidence]. [P. 211] E (vi) Criminal Trial—

Witness, evidence of—Discrepency in—Witnesses called to give evidence after lapse of 3 years—Held : Contradictions in their state­ ments to be natural—Held further : Witnesses subjected to lengthy and tiresome cross examination not to be expected to give description of occurrence with scientific precision and contradictions appearing, in their evidence not to be given undue importance. [P. 212] F& G PLJ 1977 SC 412 ref. (vii) Criminal Trial—

Motive—Evidence of—Corroboration for—Independent witness— Both parties inimical to each other—Scuffle taking place one day prior to occurrence in which accused father sustaining injuries—Liti­gation over question of wedded wife of deceased abducted by one of accused—Evidence of independent witness unshaken—No motive attributed to witness for giving false evidence—Held : Accused had sufficient motive to kill deceased. [P. 213] H & J (viii) Criminal Trial—

Recovery—Evidentiary value of—Hatchet recovered from accused, not blood-stained, held, having no evidenciary value—[Evidence Act (I of 1872)—Ss. 9&27J. [P. 213] K (ix) Pakistan Penal Code (XLV of I860)—

S. 302/34—Murder, Offence of—Evidence, appreciation of—Convic­ tion—Murder committed in broad-day-light without any question of mistaken of identity—No delay in FIR—Complainant and his brother real uncle, of accused and their evidence safely relied—Uncles not ex­ pected to involve their real nephews unless they have committed murder—No inconsistency between medical evidence-and ocular evidence—Eye evidence corroborated by evidence of motive—Accus­ ed not disputing existence of enmity between parties over question of wedded wife of deceased—Prosecution, held, proved its case to the hilt—Appeal dismissed. [Pp. 213 & 214] L & M Shaikh Ayaz, Advocate for Appellants. Mr. Sharafuddin Ada Advocate for Respondent. Date of hearing: 10-11-1983. JUDGMENT All the four appellants : AH Gohar, Muhammad Alam, Ali Murad and Mohammad Hassan who are all brothers were tried for the murder of Majan alias Abdul Majeed brother of the complainant Ghalam Hussain in the Sessions case No. 75 of 1978, by the 1st. Additional Sessions Judge, Sukkur. The learned triai Judge convicted them u/Ss. 302/34 PPC and sentenced them to life imprisonment and fine of Rs. 2000- or in default R.I for 2 years vide his judgment dated 21-4-1983. By the present appeal the appellants have challenged their conviction and_ sentence. The prosecution case is to the following effect. About 9-10 months before his murder, the deceased Majan married with Mst. Mukhtiar who after said marriage developed illicit liaison with the accused Ali Gohar who happens to be the nephew of the deceased. It is alleged that the accused's party arranged to have search warrant issned by the Mukhtiarkar Shikarpur for search of Mst. Mukhtiar. When she was produced before the Mukhtiarkar she gave statement in favour of the accused where upon she was allowed to go with the accused Ali Gohar. This created bad blood between the parties who became hostile to each other and started fighting amongst themselves. Both the parties have been run down-in the proceedings u/'Ss. 107/151 Or. P.C. which arc said to be still pending. On the application of the mother of Mst. Mukhtiar, the latter was once again produced by the police before the S.D.M, Rohri, but in view of her statement in favour of the accused Ali Gohar she was permitted by the learned S.D.M, to go with the said accused. However accused party was annoyed on their being dragged in Courts frequently. One day prior to the occurrence the complainant and his deceased brother Majan were on their way to Pano-Aqil when they came across Rajo father of the accused and hss two sons Liaqat A!i and Ali Murad. There had been sharp exchanges between the two sides and the complainant and the deceased ever gave blows to their aforesaid adversaries in course of the said scuffle. On the day of occurrence (i.e. 12-1-1978) the deceased accompanied' by his two brothers Ghulam Hussain (complainant) and Sain Dino were returning from Arzi village when at Nawa Bhutta village they were over taken by all the four appellants-Accused Ali Gohar, Muhammad Hassan and ASi Murad armed with hatchets and Muhammad Alam carrying a lathi. The accused challenged the complainant and Saia Dino to keep away, declaring further that they would kill Majan. The accused Muhammad Alam opened the attack and gave lathi blow to the deceased on his head. whereupon he fell down. The other three accused also gave hatchet blows to him. Accused Muhammad Hassan was said to have used back side of hatchet while giving blow to the deceased. Thinking that, the deceased had expired the accused fled away towards eastern side. After the departure of the accused, the complainant and Sain Dino joined hands to carry the deceased to the Police Station Parto Aqil where the complainant lodged F.I.R. at 12.45 P M. A.S.I. Muhammad Ashraf (P.W-8) who was iacharge of the Police Station Pano Aqil recorded the F.I.R. (Ex. 5). He also noted the injuries on the person of the deceased who was still alive and referred him to Civil Hospital Sukkur, for examination and treatment. Then he record­ ed the statement of Sain Dino. Thereafter the A.S.I inspected the scene £f occurrence which situated in the land of Allah Bux Malano in den : Kot Sadiq Shah in presence of mashirs Ali Muhammad Ramzan and secured blood stained earth from there and sealed the same under memo (Ex : 15). Three of the accused namely Ali Gohar, All Murad and Mohammad Hassan were put under arrest by the A.S.I from the house in presence of aforesaid mashirs under memo (Ex. 16). Each accused led the A.S.I to his house and produced one hatchet before him in presence of the same mashirs. The hatchets recovered from ASi Gohar and Afi Murad were said to be stained with blood whereas the hatchet pro­ duced by Muhammad Hassan was not biood stained. The hatchets secured from the accused were -sealed into the separate parcels and were later sent with blood stained earth to Chemical Analyser and Chemical report (Ex. 25) has been placed on record. The A.S.I, also recorded statements of Daim, Abdul Hameed and Mst. Wazir. The deceased was shown to have expired in the Hospital on the following day i.e., S 3-1-1978. After completion of the investigation the accused were sent up for trial in the court, Dr. Abdul Karim (P. W-7) of Banerji Government Hospital con­ ducted the post mortem examination of the dead body of deceased Majan. His evidence discloses following injuries on the person of the deceased : "1. Contusion 2j" x ! i" x on the first temporcparieial region. 2. Incised wound 3J" xl|"x muscle and bone cut on the middle of left lower leg, 3. Incised wound 1J x/|" x muscle deep on the outer side upper third of left thigh. 4. Contused wound If x 1|" x muscle deep on the parietal region. The Doctor has certified the above injuries to be ante-mortem. In his opinion the injuries No. 1 and 4 were caused by hard blunt subs­ tance whereas other two injuries were the result of blows by sharp cutting weapon. According to the Doctor the injury No. 1 individually and aii the injuries collectively were sufficient in ordinary course of nature to cause death. The medical evidence as stated above stands un-shaken. Even the accused have not questioned the truth of the medical evidence which, accordingly proves that the deceased Majan had died of the injuries he had received. The crucial point for determination however is whether the accused in furtherance of their common intention committed the murder of the deceased Majan. On this point the prosecution evidence is divided into three compartments : ocular evidence, evidence of motive and recovery of incriminating articles. The ocular evidence is furnished by complainant Ghulam Hussain, Sain Dino and Mst. Waziran. They have no doubt implicated all the four accused stating on oath that they saw the accused giving blows to the deceased-Accused Mohammad Alain with lathi and other three accused with hatchets. The learned counsel for the accused has severely criticised the evidence of above eye-witnesses contending that it does not inspire confidence for variety of reasons. His first objection is with regard to P.W Mst. Waziran who, according to the learned counsel does not figure as witness in the F.I.R and as such can not be believed to have witnessed the incident. la support of his argument he has placed reliance on Khalil v. The State ?{PLD 1956 (W.P.) Lahore 840) wherm it was held : "1 have carefully considered the statement of the witness and am inclined to consider it truthful, but it appears to me that in view of the fact that his name, found no place in the first information report the safer course would be to keep his statement out of consideration, I In view of above authority, the argument of the learned counsel is not -djwithout force. Mst. Waziran seems to have come to vardat after the joccurrence and as such she can be believed only to that extent. As for other two eye witnesses, he contended that they arc not only related inter-se but are also hostile to the accused. He further submitted that in view of their own admission that following the fight between the complainant and the deceased with the accused's father Rajo and his two sons one day prior to the occurrence they had run away out of fear of police and therefore their presence at the vardat was doubtful. It was also pointed out by the learned counsel that independent persons from the nearby village Nawa Bhutta had admittedly witnessed the occurrence but none from them has been produced in the evidence. He also stated that the ocular evidence is not consistent with the medical evidence and that the evidence of above witnesses is full of contradictions casting a serious doubt on its truthfulness. There is no doubt that complainant and Sain Dino are brothers of Majan deceased and Mst. Waziran is later's widow. It is further admitted that the parties have long standing enmity over the question of Mst. Mukhtiar and there had been a lot of litigation between them on the said question. The question arises if the evidence of such partisan witnesses can be acted upon for the purpose of conviction. While can­ vassing his view point that no reliance can be placed on such evidence, the learned counsel for the accused has cited two authorities in his support: namely, Sahib Masih and another v. The State (1982 S.C.M.R 178) and Nfaz v. The State [P. L. D 1960 S.C. (Pak) 387]. In the first case of Sahib Masih it was held by the Supreme Court: "In the case of interested witnesses, as all the three eye-witnesses in this case happened to be, one expects that their statements ring true or are not intrinsically unsound or inconsistent, when that test is satisfied, than in the case of ordinary interested witnesses, independent corroboration of some sort is looked for and ensured. The motive by itself in a case like this, serves as a double-edged weapon. It could prompt false implication. It could as well prompt revenge in the form of aggression. In determining the intrinsic worth or consistency of the statement of eye-witnesses, the mere presence of motive is not sufficient." To the second case of Niaz, the Supreme Court was pleased to observe : "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be; considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed tbe occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge on person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of convicton and the Court will have to look for some additional circusmstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itseif must be proved beyond all reasonable doubt." On the other hand the learned State counsel has argued that it is the intrinsic value and worth of the evidence which really counts. According to him the evidence cannot be disbelieved merely because it has come from the mouth of the interested witnesses. In sup-ibrt of his view he has placed reliance on Shahzado v. The State and 8 others [PLJ 1977 S.C. 278] wherein it was held : . . ''There is no doubt that the witnesses were interested in the prosecu­ tion of the accused and inimical against them. But that fact alone is not sufficient to altogether discard their evidence. It has to be pro per! v sifted and weighed with the necessary care and caution before rejecting the chaff and accepting the grain in the light of the facts of each of each case. The trial court had the opportunity to watch the demeanour of witnesses and form first hand impression about their deposition and due importance should be attached to its conclusions drawn from their evidence. In the circumstances the High Court was not justified in insisting upon corrob'ration of the testimony of the eye-witnesses in each and every detail in this case ancl thus reject their evidersce on the point. I have already beld-above that the High Court was misled into thinking that the assailants had fired from a close range of two paces only." The other case relied upon by the learned counsel on the same point is of Roshan and 4 others v. The'State (PLJ 1977 S.C. 412) wherein it was observed : ' "As regards the testimony of Mehdi and Raju, P.Ws : there is also no universal rule that the evidence of an interested witness must be in­ variably corroborated by independent evidence. If that were so then why should the court'at all take into account the testimony of the in ere ted witness. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist ,upon independent corroboration if that was the rule then the accused have only to destroy the evidence which may be used as cuiroborati'on and get scotrfree regardless of the quantum and quality of the oral evidence 'provided by the interested witness. It, thereeach case and instances are not wanting .eld the conviction of the accused based the 'Interested' witness". to the views expressed in the aforesaid jsitioa that has emerged from these cases ilone is not enough to discard his evidence. guard so that in presence of the tainted ;ous in its evaluation. Although it is not d dry formula, universally applicable in it is the duty of the court to look for h m?,y enable it to arrive at a correct conthe evidence. This is possible only when i of evidence and determine its effect in the of the learned counsel for the appellant ard Sain Dino at the time of occurrence j in;u sH that the complainant has admitted the accused's lather and brothers one day t at tear of police. It appears that they fitch does not mean that they had left ten rli-y were residing. The above argu- ,hc accused obviously over looks the fact hh the complainaut at the time of the day earlier was murdered on the following argued that the complainant and deceased n any pohce action. If the deceased murder at the time of occurrence, there yre:;e;iCt; of the complainant. Similarly the as o:„>•; involved in the earlier scuffle could occurrence are invariably unwiiling to render any assistance to the victims of the offence or come forward to give evidence as witness. Instead they hastiy depart from the scene of offence to avoid being entangled in the •case, Of a course this tendency on their part is far from commendable. Faced with such a situation the 'courts of this country have been cons­ trained to hold that nort examination of independent witnesses would not be permitted to adversely affect the prosecution case, which has otherwise been proved by the other evidence. Thus merely because no independent witness has been examined in this case, the evidence of aforesaid witnesses cannot be doubted or disbelieved. It was averred by the learned counsel for the appellants that the ocular evidence is not in consonance with the medica! evidence and therefore the presence of the eye witness is rendered doubtful. As has been pointed above that as soon as the F.I.R. was lodged both the complainant and Sain Dino were taken into custody by the police in connection with the injuries they were alleged to have caused to the accused's father and brothers one day prior to the occurrence goes long way to prove their presence at the time of the murder. Even otherwise I see no inconsis­ tency between the medical evidence arid the ocular evidence. It is true that three of the accused were armed with hatchets and the remaining fourth carried a lathi but it is disclosed in the medical evidence that out of four injuriss found on the person of the deceased, two were with sharp weapon and two with blunt substance. The argument of the learned counsel is that ever? if it be assumed that accused had given one blow each to. the deceased stili on; injury by biunt substance would remain un-explamad. it seems the learned counsel has over looked the evidence to the effect that accused Mohammad Hassan had used biunt side of hatchet while giving blow to the deceased. When this was pointed due to the learned counsel he. argued that it was not possible that in the heat of moment he would take care not to use sharp side of the hatchet. If this was nor possible it was also unlikely that in this situation when there was confuMcn ah around the witnesses would be in a position to count the blows each accused had given or to say which blow was given by which accused. May be the accused carrying a laihi had caused both the injuries certified to have been caused by blunt substance and the accused said to have used back side of hatchet did not get his turn for inflicting in­ juries on the deceased, Thus the argument of the accusd's counsel in this regard has absolutely no force, in this connection the learned State counsei has cued the case of Machia aed 2 others v. The State (PLJ 1977 ;S.C 36) wherein it was held : "However, even on the assumption that the medical evidence is con­ sistent with that of the eye-witnesses can medical evidence corroborate ocular evidence which is tainted by enmity 1 Medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger hi relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can kad to the influence that the eye-witnesses have spoken the truth." Tii-; learned counsel has further argued that the eye evidence is discreparo. inasmuch as that there are many contradictions appearing in the statements of complainant and Sain Dino and therefore in his opinion no safe reliance can be placed on their evidence without independent corroboration. It may be stated that in the first place, the learned covnsel has not been able to point out any material contradiction worthy of attention. "The contradictions referred to by him are of no consequence. They are rather aatura! particularly when the witaesses were called to give evidence after lapse of more than three years from the occurrence. In course of time they are apt to forget the insignificant details of the incident. Again if "they are subjected to lengthly and tiresome cross-examination it is not expected of them to give description of the occurrence with scientific precision. At this stage it would not bs out of way to refer to the case of Roshan and 4 others v. The State-(PLJ 1977 S.C. 412) wherein it was facid : "As to the contradictions in the statements of the eye-witnesses on which the defence has placed so much reliance, I may point out that some counsel devote at! their energies to create such contradictions and to this and lengthy cross examination is conducted for hours and days which is intended to confute, even an intelligent person, and is not calculated to elicit any useful information. This exercise is undertaken because Courts give undue importance to contradictions found in the statements of the prosecution witnesses. To my mind, the primary consideration is appraising the evidence given by a witness is to determine, firstly why has he offered to testify ? Has he seen the occurrence ? If so, has she witness a motive to implicate a person who was not among the culprits or to exaggerate the part played by any of them ? if a witness satisfies these two tests, then the court should watch the general demeanour of the witness in order to judge the quality of his perception and his faculty to recall the past incidents. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory of the confusion caused in his mind by a relentless cross examiner. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether he knows the answer to it or not. It is not uncommon that the cross examiner puts words in the mouth of witnesses and the presiding officer is not vigillant enough to checlc it. It is aiso common experience that, witnout any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it mare than others. Mere contradictions. therefore do not lead to the result thai whatever the witness has said on. the salieftt features of the case and whigfa conforms to the other evidence on the record is to be thrown overboard," ln view of what has bee;i stated above the contradictions appearing in the evidence of above eye witnesses should not be given undue impor- "llattee as they are not so material as to create an impression of the witnesses (having indulged in false hoods. The next piece of evidence relied upon by the prosecution to corro­borate the ocular evidence is the evidence of motive. As has been deposed fey the complainant that tiie dispute arose between the parties over the .question of Mst. Mukhtiar who after her marriage with the deceased suspected by the complainant's party to have illicit connections with the accused AH Gobar. According to him there had bsen even a lot of litigation between the parlies so much so that the complainaat and the deceased were remanded to jail. His evidence further shows that one day prior to the murder of Majan, he and deceased were engaged in a fight with Rajo, accused's father and his two sons in which the latter had even received injuries and this spurred the animosity xisting between the parties. He is supported by Abdul Hamid (P.W-3) who to ray mind is most independent witness. It is in his evidence that he is on visiting terras with both the parties. It appears from his evidence that after Rajo, father of the accused had received injuries in the scujffle that had preceded the murder of the deceased, he had called on him in the Civil Hospital in presence of his sons (accused). He has stated on oath that he availed the opportunity to advise Rajo and his sons to patch up their differences with complainant's party to which Rajo gave Court reply that he was not prepared to compromise and his sons were there to take revenge. His evidence is entirely unshaken.f No motive has been attributed much less proved against this witness for giving false evidence. He lends full support to the complainant with regard to motive. It is also an admitted position that the accused are nephews of the deceased and so also of the complainant and Sain Dino. It cannot be believed that the uncles wouid involve their real nephews in the false case involving the capital punish­ ment, unless they had actually committed the murder. It was however contended by the learned counsel for the accused that motive of enmity is double edged weapon which cuts both sides. According to him since accused Ali Gobar had married Mst. Mukhtiar wife of the deceased against the wishes and to the serious annoyance of the complaraant's party, the latter party had the cause of grievance and therefore it was not probable that accused would have recorded to violence resulting in the murder of the deceased. I am not impressed by this argument, Since the accused had equally suffered over the question of Mst. Mukhtiar and had realized that they would not be allowed to get away with the wrong they had done to the deceased by taking away and detaining his legally wedded wife, they could not be expected to forget the issue and only to remain on defensive. Moreover the scuffled thatt ook place one day earlier than the deceased's murder in which the accused's father sustained! injuries made the accused vow for taking revenge. Accordingly I ami convinced that the accused had sufficient moiive to kill the deceased. The last piece of evidence produced by the prosecution is the evidence of recovery of hatchets from the possession of the accused. The chemical report however indicates that the blood on the hatchets secured from the K accused had disinetgrated. Accordingly I agree with the learned counsel for the accused that the evidence of the recovery of hatchets has no evidentiary value, To sum-up the evidence that has been laid in proof of the prosecution case, it may be stated that the murder of deceased Majan was com mined in a broad-day-light when there was no question of mistaken identity. The occurrence was reported to t!,-; police with utmost prompti­ tude leaving no margin of time for consultations and deliberations as regards false substitution in place of real culprit. The complainant Ghuiam Hussaio and his brother Saia Dino are real uncles of the accused and their evidence in view of above discussion eae be safely believed Unless th$ accused have committed the murder of the deceased, thesr ow,- uncles, the aforesaid eye witnesses could not be expected to involve their snnocent nephew, in the case of the murder charge. The eye evidence hat tjeen fully corroborated by the evidence of motive which hai corr.c not lonly from the complainant and his brother Sain Dino but also from the independent witness Abdul Harneed. £ven the accused have not disputed the existence of enmity between them and the complainant's party over the question of Mst. Mukhtiar. For the foregoing reasons i have come to the irresistible conclusion that the prosecution have proved their case to the hill. Accordingly I see no justification to interfere with the decision of the trial Court, Therefore the appeal is dismissed. (Aq. By.) Appeal dismissed.

P L J 1984 Cr P L J 1984 Cr. C. 214 [Rawalpindi Bench] Present : RUSTAM S. S1DHWA & LEHRASAP KHAN\ J MUHAMMAD BANARAS and Another—Appellants versus THE STATE— Respondent Cr. AppeaS No. 867 of 1980, decided on 7-12-1983. <i) Pakistan Penal Code (XLV of I860)-- g_ 302—Murder—Offence of—Conviction, basis for—Evidence, appreciation of—Both eye-witnesses admittedly present at place of occurrence—One eye-witness having no relationship with deceased or complainant nor animosity or motive against appellants—Previous enmity between parties existing—-Medical evidence furnishing support to testimony of eye-witnesses—No delay In lodging FLR~--Recoveries not furnishing support to prosecution case—Prosention, held, succeeded in bringing home guilt beyond any reasonable doubt to both appellants on basis of testimonies of two eye-witnesses-—Cor,yiction and sentence upheld, [Pp. 220 & 221] F & G (ii) Crimiaai Trial—

Criminal cases—Burden of proof, of—Held ' In criminal cases, onus of proof (always) to lie on prosecution, i?. 218'j A PLD - 964 SC 792 ret, {ii) Criminal Trial— Witness—Chance witness—Interested o f Held • In case of interested and imu.i v Courts generally to insist upon independent to rule of prudence for safe administrate IP. 219] B (iv) Crimina! Trial-—

Witness—Eye-witness—Friendly with deceased—Testimony of— Witness having no motive or animosity against appellants to falsely involve them in murder case—Held : Mere fact ^of P, W. or his son having friendly relations with deceased, to f urniih ao plausible justi­ fication to discredit his testimony. [P. 219] C {v) Criminal Trial—

Witness—Testimony of—Testimony of P. W. not believed against acquitted co-accused but accepted in case of appellant—Held ; Where witness proved to have given false evidence with regard to some details, whoie of his deposition not to be held unreliable—lldii further : Theory of fulsus in uno falsus in omnibus —no more holding field, Court to separate grain from chaff. [P, 219j D PLD 1962 Lah. 58 reL (fi) Criminal Trial— - _

Witness—Independent—Failure to produce—Effect of—Occurrence taking place near bus stand in broad daylight—Prosecution not pro­ ducing any witness from independent oo-lookers but S.I. recording statement of 35 persons present near about place of occurrence—Held: Testimony of P.W, not to be disbelieved merely because of persons residing in locality having not been cited or produced as eye-witness, [Evidence]. (P. 219] F PU 1976 SC 175 ; PLJ 1977 SC 278 & PLD 1965 SC 188 .-«-/. Mr, Ijaz Hassain Batalvi, Advocate for Appellants. Mr, Ghuiana Muhammad, Advocate for State, Sardar Muhammad Ishaque Khan, Advocate for Complainant. Date of hearing : 442-1983. JUDGMENT Lehrasap Khan, J.—Mohammad Banaras son of Mohammad Sher agedP 40 and (2) Ghulam Hussain son of Alam Sher aged 35 were tried aiongwith Ghulam Mohy-ud-Din son of Mohammad Sher aged 45 and Noor Moham­ mad son of Alam Sher, aged 30, all A wans by caste and residents of Dhok Gangawali, by the learned Sessions Judge, Attack, under Section 302/34 PPC, for committing the m ardor of Ghulam Mehdi son of Fazal Dad aged 45, their co-village, on i-6-79 at Degarwela near the Bus Stand in the area of Pindigheb at a distance of 6,4 Kilometer, ffjpni Police Station, Pindigheb. 2. The learned trial Judge, vide his judgment dated 29-7-80, convicted the afore-said Mohammad Banaras and Gtiulam Hussain under Section 202/34 PPC and sentenced each of them to death and a fine of Rs. 5000/- or in default to one year further R.I. The two co-accused namely Ghulam Mohy-ud-Din and Noor Muhammad were, however, acquitted. 3, The convicts have challenged their conviction and sentence through the present appeal. The matter also stands referred to us under Section 374 Cr. P.C. for the confirmation of death sentence awarded to these appellants. The Appeal as also the Murder Reference shall be disposed of by this judgment, &. The occurrence was reported at the Police Station, Pindigheb, by Abdul Ghani (PW 11), the cousin and brothf,"- ; -i-law of the deceased at. 5,30 p.m. through F I.R. Ex. PfC, which was recorded by Raja Mahmood Akbtar, the then S.I. Police Station, Pindigheb (PW 13). 5. As per FIR account of the prosecution version, Ghuiam Mehdi deceased and Abdul Ghani complainant {PW !ij went t o Pindigheb Town. in connection with their domestic affairs. At about Degarwela, they reached Bus Stand, Pindigheb, to go back to their village. They sat down in the hotel of Mian M.ohammad alias Mota at. the Bus Stand where Sultan Mumariz Khan (PW «2) and Allah Dad (f occurrence, a little after the first call of Junta prayer, Ghulam Mends deceased a'ighted from a bus at Pindigheb Bus Staad. This witness and Farraan Shah h'appsned to be present there. Ghulam Mehdi looked at fihe witness and addressed him to say as to why he was stairiag at him. Thereafter altercation followed. The deceased took out &. pistol from the fold of his Shalwar ami aimed the same at she wiiaess. He (the witness) hurriedly pounced upon the deceased arid snatched the pistol. The witness tired at the deceased hitting him in the chest. Thereafter, he feH down. Two shots were fired at him. by this witness Farman Shah, the companion of the witness, also caused Churri blows to the deceased. According r.o Mohammad Saeed, none oat of the four accused was present at the time of occur re ace nor any of them participated in the occurrence. He disclosed that Sultan Mumariz Khan and Abdul ••Ghani P.Ws were also net present at the time of occurrence. 16, Allah Dad (CW 1) and Farman Shah CCW 2} supported the ver­ sion of Mohammad Saecd (DW 2). except thai Allah Dad deposed that Abdul Ghani and Sultan Mumariz Khan P.Ws might be present at the time of occurrence, 17. It has been contended on behalf of the appellants that indepen­ dent of the defence version, onus of proving guilt of the accused persons beyond any reasonable doubt rests on the prc-secuti oa and that onus, in the circumstances of the instant case, has not been successfully discharged even to the extent of the two appellants. No doubt in Wall Mohammad v. The State (1969 SCMR 612), it has been held by the Supreme Court of Pa­ kistan that the prosecution has to prove its case and the appellant cannot be jconvicted on this ground alone that his version appears to be unconvincing. flit is an established legal maxim that in criminal cases, the burden of proof flies on the prosecution. It has been ruled in Mohammad Fazlul Karim v. The State and another (?LD 1964 SC 792), that it must be remembered always that in a criminal case, the onus is oa the prosecutioa to prove their case, and the accused cannot be convicted merely on proof in his having told an untruth in relation to one or more of the facts alleged sgainst him, 18. la the circumstances of the under consideration case, as already observed, Abdul Ghani (PW 11) and Sultan Mumariz Khan (PW 12) have been examined as eye witnesses, Abdul Ghani (PW 11) is admittedly the first cousin and brother-in-law of Ghuiam Mehdi deceased. He was also involved aiongwith Ghuiam Mehdi deceased aod others in the double murder case of Fazal Din and Allah Ditta. Fazal Din deceased was brother of Noor Muhammad, acquitted co-accused and Ghuiam Hussain appellant while Allah Ditta was son of Ghuiam Moby-ud-Din, acquitted co-accused,. and nephew of Muhammad Banaras appellant. Even prior to the murders of Fazal Din aod Allah Ditta. there has been cases of attempted murders between the two factions. The present occurrence took place at the Bus Stand cf Pindigheb, while Abdul Ghatii (PW 11} is resident of Ohok Gaogawait which is at a distance of 7/8 iniies from Ptrsdigheb. Abdui Ghani, in the FIR Lx, FK stated that he and deceased had come to Pirtdigheh on the day of occurrence in connection with their domestic affairs. tie did not disclose the uiuurt' of-aoh affairs, Jr- his examiuation-in-Chief, he s'lited that they had came to Pindigheb on the day of occurrence because the deceased had to get back his money from one of bis friends. In the cross-examination, Abdul Ghani deposed that on the day of occurrence, he had coins io Pindigheb to order Suhan Cobbler to prepare his Chappies. It thus uairspires tiut Abdui Glum; i?W 11.) is not only a close relative of Ghulajn Mehdi deceased but he has a long standing dsep rooted enmity agaiDsi the aopsii.-J'iiS and be dawns Ins presence at the place of occurrence as a change xviinttss. la case of sucu ifstere&ied and inimical chance wltoes-i se->, rhss Court gc«cfa;iv umsts upon indcpeodeiH corroboration, to adhere! M the tuie of prudence for iafc ad.muiisir.-ition of cfitaiaal justice. !'), ft Is, however, rote-worthy !h<jt P,W, 12 Snlis.fi Mumai'tt Khan, who too has ; ,esiiihd at ibe trial ss eye witness and lias supported the prosecutiOi/ vs-r'i'.o?! £- coniamcd tfl tnc FfR and as also disclosed by Abdiir C'riHi:!! jj'W :i i, ji diji ruiatfcS to ?Sc dec«ascd or to Abdci Ghani. There is noihiisg or this ffcoros to suggest l ! i«t Sultan Mumariz Kban has any suiffiicsliy wh;iiso£--x-r ag'iiasi the appellants. He has admitted that his son Siser Bauadur and Ghuiiivn Mehdi deceased 3ioa?wth certain other persons of hii faction were bound down to Reap peace on or.t side asagaiasl About Raz7.a(| eic. of his-viilayc. This SuUan Marnuii/ Khan is resident of vsilage- Pifaaa which is a? a disusnce of IS roiScs froio Pindighfb, hat admittedly he has his Dera at Piodigheb as well, The mere fact that Sultan Mumarizj' Khars or hi.s sun, had friendiy tcJatioai with She deceased, does act fur&ishi a plausible justification to discredit his iestimomy when he bad no motiveLor animosity against the appellants to falsely involve them in a murderj case, it is true that Icstnnorsy of SuHan Mumam. Khan has not been belicv-J cd as against the acquitted two co-accused namely Ghulam Mohy-udrDin and Noor Muhammad, who have since been acquitted and whose acquittal has not been challenged by the State or the complainant. But whole of his. testimony cannot be held to be unreliable. In Mela aad others v. The Slates (PLD 1962 Lahore 58) it was held that where a witness is proved to faavt! given false evidence with regard to some details, the whole of his deposi-L tion cannot be held to be unreliable. The theory of falsus in uno, falsus in'. omnibus, no more holds the field and it is the duty of the Court to separate! the grain from the chaff. The presence of the two appellants at the place of| occurrence at the time of the murder ot the deceased hss not been denied by them also. 20, It hat been urged on behalf of the appellants that the occurrence took place during the broad day light at the Bus Stand in front of hotels asid other shops. Many indepeadeat Witnesses could be produced by the prosecution to substantiate their allegations against the appellants. La . Ysqeofe Sfeah v. The Stale (PLJ '1976 SC 175), it has been observed :— "It is frequent experience of criminal Courts that many a gruesome tragedy is enacted with scores of on-lookers around, yet th« assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These "inde­ pendent" on-lookers axe not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also ia violation'of the Islamic injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin. This indeed is cae of the principal 1 causes of delay in decision of criminal cases". 21. In the present case as well, the Investigating Officer viz. Raja Mahmood Akhtar, S.I. (P.W. 13) deposed that on 1-6-1979 besides the eye witnesses, he recorded statements of Khan son of Sher Khan, Proprietor ban Hotel,- Bus Stand, Pindigheb, Hazoor Muhammad son of Mian Ahmad alias Mota, Proprietor of Mota Hotel, Sultan son of Mian Muhammad and Hayat Muhammad son of Saaduliah, servant of Mota etc. including those persons present near about the spot or in the shops at- the time of occurrence. The total number of those witnesses, according to Raja iMahmood Akhtar, was 35. He could not-cite any one of them as eye Jwitnesses because they denied having seen the occurrence. The testimony ~|of Sultan Mumariz Khan, therefore, cannot be disbelieved for the reason Jthat the persons residing in the locality where the occurrence took place have not beca cited or produced as eye witnesses. In Shabzado v.'The State and 8 others (PLJ 197? SC 278) it was observed :—• "There is no doubt that the witnesses were interested ia the prosecu­ tion of the accused and inisnica! against them. But the fact alone is not sufficient to altogether discard their evidence. It has to be properly sifted aad weighed with the necessary care and caution before rejecting the chaff and accepting the grain ia the light of the facts of each ease". '22. In Na»r Hassaia v. Muhammad Shaf and etfeers (PLD 1965 SC 188), it wss held that there was no inflexible rule that the statement of an interested witaess can never be accepted without corroboration. 23. As already noticed above, Sultan Mumariz Khan (PW 12) has no relationship with the deceased or the complaisant. He has no animosity or motive against the appellants For their false involvement. His presence alongwith Abd«! Ghani on the spot at the time of occurrence has not been denied by Allah Dad fCW 1). The appellants have also admitted that they were present at the Bus Stand at the time of occurrence. The medical ^evidence also funvKhes support to the testimony of Sultan Muroariz Khan (and Abdul Ghani to the-extent that incised wounds easssed by % sharp edged Iweapon bave been noticed by the doe-tor at the time of post mortem examination on the dead body of Ghulam Mehdi deceased. These two eye witnesses have stated that these incised wounds most of which have beea declared to be fata! by the doctor were caused by the appellants. The FIR purports to have been lodged promptly after the occurrence. In these circumstances, we are satisfied that the testimony of Suitan Mumariz Khan (PW 12) to the extent of participation of the two appellants before us, in the occurrence, deserves credence and to that extent his testimony also furnishes support and corroboration to that of P.W. 11 Abdul Gh&m. The recoveries in this case of-course do not furnish corroboration to the prosecu­ tion case inasmuch as small metallic parts recovered from the dead body of the deceased did not match with the revolvers allegedly recovered from the acquitted co-accused as per report Ex. PC of the Forensic Science Laboratory, The Churris which are alleged to have beea recovered from tfee appellants were recovered S3 days after the occurrence and 8 days after/ ihelr arrest. The only recovery witness who testified at the trial about these Churris besides the Investigating Officer happened to be a close relation of the deceased and none from the locality from where Churris were allegedly recovered was associated with the recovery. In the Sight of our findings in the preceding paragraph we con­ clude that on the basis of the testimonies of afore-mentioned two eye witnesses and the other circumstances narrated above, the prosecution has been successful to bring home the guiit beyond any reasonable doubt to both the appellants. They have murdered Ghulam Mehdi deceased during broad day light in a gruesome manner to aveage the previous murders of the}/ close relations. In this view of the matter, their appeal fails and is accordingly dismissed while their conviction and sentence are upheld. The death sentence awarded to both the appellants is thus Confirmed. (Aq. By.) Appeal dismissed

P L J 1984 Cr P L J 1984 Cr. C. (Peshawar) 221 Present : INAYAT ELAHI KHAN, J Dr. ABDUL AZIZ—Petitioner versas ANWAR KHAN tad 2 Others—Respondents Criminal Misc. No. 668/£3, decided on 7-3-1984. <i) Criminal Procedure Cod (V of 1898)— . Si. 439-A & 56I-A—Sessions Judge—Revisioaal jurisdiction of— Exercise of—Additional Sessions Judge clearly intending t6 set aside proceedings in complaint case in exercise of his revisions! jurisdic­tion—Held : Mere fact of proceedings having been quashed to be of no consequence particularly when Additional Sessions Judge never intended to exercise inherent powers available to High Court nnder S. 561-A. [P. 223] A <ii) Criminal Procedure Code (V of 1898)-

S. 195 (1) (c>—Documents given is evideace—Prosecution for offences relating to—Alleged forged docutneats produced in evideaee in civil Court—Held : Magistrate to have mo jurisdiction to tak cognizance of offences on private complaint unless provisions under Ss. 195 (!) (c) & 476 be complied with. [P. 224] B PLD 1966 Kar. 207 ; AIR 1953 SC 293 ; AIR 1934 Lah, 434 & 1979 P. Cr. L. J.. 753 re/, Mr. K. G.^Sabir, Advocate for Petitioner. Mr, Muhammad Wtris Khan, Advocate for Respondents 1 & 2. Mr. M. Ajmtl, Law Officer for State. Date of hearing ; 7-3-1984. JUDGMENT This Criminal Miscellaneous petition has been filed under section 561-A of the Criminal Procedure Code for quashment of the order of the learned Additional Sessions Judge, Ma-dan, dated 25-7-1983 whereby the proceed­ ings pending before the Magistrate, 1st Class, Mardan, on a complaint filed by the petitioner against the respondents, were quashed, 2, The facts of the case are that the petitioner submitted a complaint in the Court of liiaqa Magistrate on 14-6-1982 wherein the respondents were charged under sections 419/^20/467/468/471 and 500 PPC. In the complaint the respondents are alleged to have produced certain forged documents in judicial proceedings. It appears that there was a dispute between, the parties .regarding shops No. 15 and 16 situate in Takht-bhai and the matter went up to the High Court, In the High Court some additional evidence was> recorded and on. the basis thereof the matter was decided in favour of the respondents. According to the complainant the documents produced in the Civil Court were forged by the respondents an 1, therefore, they were liable to be prosecuted for the aforesaid offences. In response to the process issued by the Magistrate the respondents appeared in Court on 20-3-1983 and submitted an application under section 249-A Cr.P.C. on the ground thai since the documents in question wera considered and acted upon by the ''High Court, so objection, to the genuineness of the documents could be taken at this stage. The contention did not prevail with a Magistrate for the reason that the issue before the High Court was purely of civil nature and the question of forgery of the documents was. never raised before the Court, Therefore, there was nothing in law to prevent the complainant from initiating the criminal proceedings against, the respondents, la this view 01 the matter the application under section 249-A was rejected. The respon­ dents filed an appsa! before the Additional Sessions' Judge, Mardan, which was treated as revision and accepted on 27-5-i983. The learned Additional Sessions Judge came to the conclusion that the allegations made in the complaint could make out a case only under sections 467/468 and 471 PPC and hence, in view of Section i 95 (I) (c) Cr.P C., the complaint was incom­ petently filed. Taking this view of the matte'r the proceeding-, in the complaint case were quashed. 3, !u support of the petition it is contended that the learned Addi­ tional Sessions Judge had actci without jurisdiction in passing the impugn­ ed order because the powers of quashment were available only to the High tourt under section 561-A. Cr, P.C- No doubt, the learned Additional Sessions Judge ordered the quashment of the proceedings but ii is clear that he was exercising the revisioiial powers under section 439-A Cr.P.C. whereunder he was competent to aiter or reverse the order impugned before \us id view of the fact that the application under section 249-A Cr.P.C, was not disposed off by the Magistrate in accordance with .law, the learned Additional Sessions Judge, in revision, was competent to pass any appropriate order in the case. It docs not appear from the orde; that the learned 'Additional Sessions Judge intended to quash the proceedings by reference to Section 561-A Cr.P.C. Since, the pro­ ceedings in the complaint were found to be without jurisdiction, the same could be set aside in (he exercise of the revisional powers. The learned counsel for the petitioner relied on Abduilab Sbiekfa v. Amiu Sheikh (1979 P.Cr.L J. 753) to contend that exercise of powers of quash men t of proceed­ ings under section S61-A Cr.P.C, by the learned Additional Sessions Judge in exercise of revisional jurisdiction was illegal. It may be mentioned that in the cited case the very words used by the learned Additional Sessions Judge showed that he had assumed the inherent powers of the High Court under section 561-A and quashed the proceedings to prevent abuse of the process of Court, In the case in hand no such words have been used in tht impugned order and in fact it was intended to set-aside the proceedings sb the trial Court which were found to be without jurisdiction. In Wasinda Ram v. Bahadar Khao {A..I.R. 1934 Lahore 434) while accepting Criminal Revision it was observed that :— •'1 have no doubt that on the allegations made by tbc petitioners nc offence has been committed, and the proceedings must be set aside as an abuse of the process of the criminal .Court. 1 accept the petition, quash the charges against the petitioners and acquit them," From the perusal of the impugned order, it is clear that the learned Additional Se>.sioijS Judge intended to set aside the proceedings in the com­ plaint in the exercise of his revisional jurisdiction. Therefore,, the mere fact' that it was mentioned that the proceedings of the trial Court were quashed; would be of no consequence. Particularly when there is nothing to show that lv; intended to exercise the inherent powers available to the High Court under section 56J-A Cr.P.C. It is also contended that Section 195(1) (c) Cr.P.C, would not be attracted to some of the offences mentioned in the complaint i e., offences under sections 419/420 and 500 PPC, In this regard it may be mentioned that the inclusion of certain offences in the complains with a view to avoid the applicability of Section 195(1) (c) Cr.P.C., would not alter the legal position. The allegations in the complaint primarily disclose the commission of the offences under sections 467/468 and 471 PPC and since the offences were allegedly committed during the proceeding: before a Civil Court, the cognizance thereof could only be taken by a comlaint in writing of the Court concerned. In Ram Chand v. The State (PL1> 1966 (WP). Karachi 207) a similar question came up for consideration wherein by reference to A.I.R. 1953 SC 293, it is observed that:— "Though in our judgment, section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also t<> be-borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essenti­ ally an oil'ence for which a complaint of the Court or of the publu servant is required. In other words, the provisions of the section canno: be evaded by the device of charging a person with an offence to which that section docs not apply and then convicting him of an offence in which a does, upon the ground that such latter offence is a mino.; offence of the same chaiacter, or by describing the offence as being or<t punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Cr.P.C. Merely by changing the garb or or label of an offence, which is essentially an offence covered by-the provisions of section 195, prosecution for such an offence cannot be taken cognisance of by misdescribing it or by putting a wrong label on it". In view of the fact that the alleged forged documents were produced in evidence in the Civil Court, therefore, the provisions of Section 195(l)(c) Cr P.C., were fully attracted to the case and the learned Additional Sessions 'judge has rightly come to the conclusion that the tomplaint was incombetentSy tiled by the petitioner. The Magistrate had no jurisdiction to take cognizance of the offences on a private complaint unless the provisions under sections 195(l)(c) and 476 Cr.P.C, have been complied with, 4 For the aforesaid reasons, no fault can b« found with the order of the learned Additional Sessions Judge impugned in this petition. The peti­ tion being without any merit is accordingly dismissed. JTTQM) Petition dismissed

P L J 1984 Cr P L J 1984 Cr. C. ( Lahore ) 224 ( Rawalpindi Bench] Present : GHAZANFAR ALI GONDAL, I K.HALID SULTAN—Petitioner versus THE STATE—Respondent Criminal Revision No. 167 of 1983, decided on 21-2-1984. Frohifeiiion (Enforcement of Hadd) Order (P.O. 4 of 1979)— __ __Art 4—Owning or possessing intoxicant—Offence of—Conviction for—Chemical Examiner-Report of—Reasons for—Report of Chemical Examiner t.meagre and cryptical to allow court to place absolute faith in same—Held : Convicting petitioner merely oa around of 5 grams of substance out of quantity recovered from, petitioner found by Chemical Examiner to be charas without giving reason details of tests applied for coming to that conclusion, toamount o fdelegation of jurisdiction of Criminal Court to Criminal Examiner—Held further : One line report of Chemical Examiner having not satisfied judicial conscience of High Court conviction and sentence of petitioner to be set aside. [Pp. 225 & 226] A f B&C AIR 1933 All. 394 ; AIR 1933 All. 837 ; AIR 1944 Bom. 321 :~ TLD 1975 Dae. 5 & PLJ 1981 Cr. C. (Lab.) 137 re/. Mr. Muhammad Ilyas Siddisjsi, Advocate for Petitioner, Mr.S.jM, Naeem, Advocate for State. Date of tearing : 31-1, 4 & 5-2-19S4. JUDGMENT This is a revision against the order dated 20-11-1983 of the Add!. Sessions Judge 11, Rawalpindi , whereby he dismissed the appeal of the petitioner against his conviction and sentence under Article 4 of P. O. No.4 of 1979, as awarded by the learned Magistrate by his judgment dated 16-8-1983. 2. The facts of the case are that on a secret information, raiding party consisting of members of Excise Intelligence Bureau, Excise Depart­ ment and police was formed. It raided Koila Centre and arrested the petitioner. On his person search 70 grams of charas was recovered from him. It was taken into possession. Out of 70 grams of charas, 5 grams was taken out and made into a sealed parcel and sent to the Chemical Examiner. His report states that the said packet contained charas. 3. At the trial Muhammad Anwar Inspector Excise Intelligence Bureau as PW1, Mushtaq Ahmad Janjna Assistant Excise Officer as PW 5 and Allah Dad Khan Inspector Police Station Cantt., Rawalpindi as P.W.6, proved the said recovery. 4. The learned Magistrate convicted the petitioner under Article 4 of P.O. No. 4 of 1979 and sentenced him to undergo one year's R.I. and a fine of Rs. 500/- or in default to undergo further R.I. for three months. The petitioner filed an appeal which was dismissed by the Additional Sessions Judge II, Rawalpindi , by his order dated 20-11-1983. 5. Learned counsel for the petitioner has raised the following points in this revision :— ((') That the report of the Chemical Examiner certifying that the parcel sent to him contained charas is cryptical and incomplete and does not give the grounds of his opinion and was not sufficient for conviction. (ii) That the recovery of charas took place from the petitioner in a thickly populated place but no person from the locality was pro­ duced in support of the alleged recovery. (Hi) That the two other accused arrested for offences brought to light in the same transaction have been acquitted on the basis of evidence of same set of witnesses, I need not decide ail the three points as in my opinion, the case can be decided on the first point raised in this petition. The case of the prosecution is that out of the quantity recovered from the petitioner, a sample of 5 grams of charas was sent to the Chemical Examiner. I have seen the Chemical Examiner's report. It is a one line report which states that the above packet contains charas. The conviction of the petitioner solely depends on the report that the sample taken from the substance recovered from the petitioner was charas. Therefore, the fate of the case of the petitioner binges on the proof of the circumstance that the report of the chemical examiner was sufficient for the .conviction of the petitioner. It is, however, not possible te place absolute reliance on the report of the chemical examiner, as, it is too meagre and cryptical a repeat to allow this Court to place absolute faith on the same. Convicting the petitioner merely oo the ground that 5 grams of substance out of the quantity recovered from the petitioner was ound by the chemical examiner to bs char as without any reason having been given by the said chemical examiner and without his having given the details of the tests applied by him for coming to that conclusion amounts to delegation of the judicial functions of the criminal court to the chemical examiner. This cannot be permitted. 1 am supported in this view of mine by a chain of authorities on the point. In Mst. Gajrani nd another v. Emperor (A. I. R. 1933 Allahabad 394), it was laid down that it is not enough for the chemical examiner merely to state his opinion, e must state the grounds on which he arrives at that opinion. As the chemical examiner merely tenders a report and he does not appear to give vidence, it is extremely desirable that his report should be full and complete and take the place of evidence which he would give if he were ^called to court as a witness. Again in Happu v. Emperor (A.I.R. 193J .Allahabad 837), it was laid down that no person ought to be put in peril of •capital or any punishment on a written report of a chemical examiner not given on oath and untested by cross-examination and to accept -such a report, whatsoever it may contain, as a proof of anything is an impossible •proposition of law Again in Bebram Sheriar Irani v. Emperor [A. I. R. <3I) 1944 Bombay 321), it was held that the weight to be attached to a report of a chemical analyser depends to a considerable extent on the asons which the chemical analyser gives for the conclusion which he has arrived at, and in some cases, where the matter is to be reported on is .the presence of certain substances in the article submitted for examination, much would turn' on the quantity of the incriminating substance found n the article. If the chemical analyser's report alone is to be considered .sufficient, it should contain all the information which that officer himself would nave been able to furnish if he had been examined as a witness. .Again in Sunity Kumar Roy v. Chairman, Jessore Municipality and another (P. L. D. 1971 Dacca 5), it was held that the report of food analyser must be full and complete so as to contain the grounds of opinion. It was further held that one line report of the analyser is not enough and is unsafe to rely solely oq such a report and that no person should be put in the peril of conviction and sentence on the basis of a report which is untested by cross-examination. Again in AH Haider v. The State 'JPLJ 1981 Cr.C. (Lab.) 137], it was held by a Division Bench of Lahore High Court in a case in which the report of fire-arm expert merely .stated his opinion unsupported by any reason, that such a report cannot atisfy conscience of court particularly where guilt or innocence of accused turns almost entirely on its analysis. It was further held that in the .anxiety to expedite the disposal of cases the interests of justice cannot be sacrificed and the court can refuse to place any reliance on the opinion of an expert which is unsupported by any reason. 8. One line report of the chemical examiner stating that the packet intained char as does not satisfy judicial conscience of this Court and a Jsuch it is not proved on the record that the sample of substance recovered (from the petitioner was char as or that therefore the substance weighing |70 grams recovered from the petitioner was charas. 9. For the above reasons, I accept this revision petition, set aside the Cjconviction and sentence of the petitioner and acquit him. He shall be set liberty forthwith if not required in any other case. (M1Q) Petition accepted

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 230 Present: MUHAMMAD ASLAM MIAN, J SHER MUHAMMAD and Another—Appellants versus THE STATE—Respondent Cr. Appl. No. 95 of 1981, decided on 14-9-1983. <i) Pakistan Penal Code (XLV of i860)— S. 302/201/34—Murder, offence of—Conviction for—Evidence,, appreciation of—Acquittal—Confessions made by appellants u/s- 164 Cr.P.C. rejected and ruled out of consideration—Recoveries not believable—Deceased already challaned in various criminal cases in­cluding murder and abduction cases—Probability of deceased having: been killed by some body else, not excluded—Prosecution case as a whole lacking proper evidence—Conviction and sentences, set aside— Appellants acquitted. [P 237] E, F,G,H,J&K <li) Pakistan Penal Code (XLV of I860)—

S. 302—Murder—Evidence, appreciation of—Deceased challaned' in number of criminal cases including murder and abduction cases— Probability of deceased having been killed by someone else, held,, not to be excluded. [P. 237] / (iii) Evidence Act (I of 1872)—

Ss. 24 to 30-—Confession—Evidentiary value of—Held: Confession^. as general rule of law to be receivable as testimony or as admission admissible against its maker. (P. 236 ]B (it) Evidence Act (I of 1872)—

Ss. 24 to 26—Confession when not admissible—Held : Confession, if coming within ingredients of Ss. 24, 25 or 26 of Evidence Act,, then same to be neither relevant nor admissible. [P. 236] C (v) Confession— -Voluntary—Probative value—Conviction—Basis. for—Held : Con­ fession if proved as voluntarily made by person confessing conviction 10 follow immediately and courts not to be required to look for corroborative evidence anywhere though as abundant caution, Judges, have been looking for other facts so as to assure themselves that con­ fessional statements happen to be voluntary [P. 235] A <»i) Confession—

Relevancy of—Admissibility—Confessions made after appellants re­ mained in custody of police for 14 days—Appellants stating that they have been tortured by police—Appellants illiterate and confessionsappearing to be result of some tutoring—Appellants even after mak­ ing confessional statement u/s 164 returned to custody of same Police Officer—Confessions made by appellants appearing as not voluntarily' made, and rejected—[Evidence Act (I of 1872)—Ss. 24, 25, 261'. (P. 236 & 237) D&E

1983 SCMR 523 ; PLD 1973 Lah. 714 ; 1975 P.Cr.LJ, 440 ; 1975 P Cr.L J. 889 ; 1973 SCMR 162 ; PLJ 1977 BJ 22 ; PLD 1960 Kar. 674 : PLJ 1977 Pesh. 116 ; PLJ 1977 Kar. 420 ; 1983 P.Cr.L.J. 882 ; 1983 P.Cr.LJ. 1113 <ft 1978 P.Cr.L.J. 579 rkf. (vii) Criminal Trial —

-Recoveries—Effect of—Guilt—Proof of^-Held : Recoveries alone? never to be taken as sufficient to prove guilt of accused person, {P. 237J F (viiij Criminal Trial — —Recovery—Evidentiary value of—Hatchet recovered not stained with blood, held, no importance can be given to recovery. [P. 237] G (ix) Criminal Trial —

Recovery—Evidence of—Value—Shoe recovered, remained in deepwater for 12 days and found static—Recovery of shoe—Held : Not believable. (P. 237] H Ch. Riyasat AH, Advocate for Appellant. Mr. Mohammad Arshad Khan, Advocate for State. • Mr. Ehtesham Qadir Shah, Advocate for Complainant. Dates of hearing : 20-4-1983 &4/9/17/23/28-5-1983 JUDGMENT Sher Muhammad alias Shera (22) s/o Patch Sher, Aman Ullah aliaf Gullah (12) s/o Ahmad resident of village Jahan Abad, Jahan Khan allay Jahana (18) s/o Sher Zaman caste A wan resident of Chak No. 190—KB and Shameer alias Shama (20) s/o Ameer caste Khokhar resident of Vigh District Sargodha, were tried by Mian Ghulam Ahmad, Sessions Judge, Sargodha under sections 364/302/201/34 PPC for committing the murder of Atta Muhammad after having abducted him in furtherance of the inten­ tion common to All of them and for their not in disposing of the dead body with a view to cause the disappearance of evidence. The learned trial Judge while aquitting Aman Uliah and Jahan Khan of all the charges, vide his judgment dated 21-12-1980 convicted and sentenced Sher Muhammad alias Shero and Shameer Ali alias Shama under section 302/34 to life impri­ sonment and a fine of Rs. 5000/- each or in default of payment to undergo further two years R.I. each ; under section 201/34 P.P.C. to six years' R.I. and to a fine of Rs. 2500/- each or in default of payment to serve further for one year R.I. each. The sentences were ordered to run consecutively,. Two-third of the amount of fin; if recovered was to be paid to the legal heirs of Atta Muhammad deceased. 2. Both the convicts have filed the present appeal. Rab Nawaz com­ plainant has also filed a revision petition (Cr.R.. 180-81) against the acquit­ tal of Aman Ullah and Jahan Khan and for enhancement of the sentence awarded to both the convicts/appe lants. This judgment will dispose of the appeal as well as the revision petition together. 3. The occurrence took place oa the night between 9/10 October, 1979' in the area of village Jahana Abad at a distance of six miles towards East from the police station Shahpur Saddar. The matter was reported to the police by Rab Nawaz (P.W.7), the real brother of the deceased, on 11-10-1979 at 6.15 P.M. vide F.I.R. Ex. P.E.F. 4. According to Rab Nawaz complainant he alongwith his brothers Atta Muhammad (deceased) and Mian Muhammad were residing in village Jahan Abad here they owned 27 acre of land jointly. The complainan was a married man whereas his brothers were still bachelors. On 9-10-1979 he requested Sher Muhammad appellant for the tube well water who cultivated the land as a tenant adjoining the land of the complainant. Sher Muhammad appellant said that the complainant could come at 9/10 p.m. for the purpose. The complainant then said to Sher Muhammad appellant that his brother Atta Muhammad deceased would come to get the water. Accordingly Atta Muhammad deceased went for the water at 9.00 p.m. but neither the deceased returned nor he irrigated the paddy crop. During the search he was told by Muhammad Aslam (P.W.I) and Maula Bakhsh (P.W.2) that on the night of occurrence at about 10/11 p.m. they had seen the deceased in the company of the appellants and the acquitted co-accused going towards the Kacha path of saint nala. At that ti me Jahan Khan co-accused was armed with a gun while the appellants and Aman Uilafo -accused had hatchets with them. Atta Muhammad deceased had & torch, with him. Th; deceased was wearing a light brown shirt, white ehadar bunion and simple Khoosa on his feet. He had a watch on his left wrist asd a bead in the pocket of his shirt. The complainant searched for the appel­ lants and the acquitted co-accused but he could not find them. Sher. Muhammad appellant had a sus)icson that the deceased had ! .illicit relations with his wife Mil. Jini Waddi. The complainant appre­ hended that the appellants and the acquitted ca-accased due to that reason had killed Atta Muhammad deceased. 5. Ghulam Muhammad A.S.I. (P.W.8) partly investigated this case, On 22-10-1979 he arrested both the appellants and the acquitted co-accused., At the time of his arrest Jahana co-accused produced a 12 bore §ub aiangwith five live cartridges and a bag. On 5-11-1979 the A.S.I, produced ail the four accused before Ch. Ameer Ali M.I.C. Shahpur and made an appiica- . tionEx, P.P. for getting their statements recorded under section 164 Cr.P.C. Manzoor Ahmad S.T. (P.W. 9) also after recording the F.I.R. Ex. P.E. made a search for the appellants and the co-accused but he could not find them out any where. He also searched fur the dead body of Atta Muhammad deceased in the saint nala; in the area of village Jahana Abad but all in vain. However the appellants and the -•co-accused had been arrested by Ghulam Muhammad A.S.I., on 22-10-1979" so he interrogated the accused. On 23-10-1979. Sher Muhammad Ud the S.I. to the dhari of Muhammad Shafi Jat where Atta Muhammad deceased bad left his chaaar P.I before his disappearance Faqir Muhammad P.W.. produced the chadar which he took into possession vide memo Ex. P.A. Rab Nawaz P.W. identified the chadar P.I as that of the deceased. Sher Muhammad appellant tnen led to the recovery of hatchet P.2 from hisresidential kotha. It was taken into possession vide memo Ex. P.C. Similar­ ly on the same day Shameer Ali alias Shama appellant while in police custody led to the recovery of shoe- P.3 belonging to the deceased from suiki branch kanal near bridge kudyana. Shoe P.3 was identified by Rab Nawaz P.W. as that of the deceased. It was taken Into possession vide memo Ex, P.D. He got prepared site plan Ex. P.B. and PB/I by Patwarj Fateh Muhammad. 6. Ch. Ameer Ali M.I.C. (P.WJO) ob the application (Ex. PF) sub­ mitted by Ghulam Muhammad A.S.I., recorded the statements of the appel­ lants and the co-accused under section 564 Cr.P.C. after complying with the provisions of sections 164 and 3-4 Cr.P.C, In his statement Ex. PF/3 Jahan Khan co-accused inter alia confessed having accompanied the other accused during which they abducted Atta Muhammad deceased and there­ after took him to the saim nala where he was strangulated by Sher Muhammad appellant and killed. Shera and Shameer appellants inter alia confessed their guilt that they killed Atta Muhammad deceased by strangu­ lation and thereafter cut the body into pieces and threw the same in the saim nala. They destroyed the belongings of the deceased by putting into the Saim nala. Aman Uliah co-accused however, stated that Atta Muhammad deceased had come to their dura for making a request as to the water to Sher Muhammad appeilatit but since Sher Muhammad appellant was not present at the dera, the deceased sat with him. After a while Shera and Sbameer appellants came there who caught hold of the deceased. He . (Aman Uliah co-accused) went out side out of fear and slept on a charpai. It as 10/11 p.m. at that time. 7. The prosecution at the trial relied mainly upon the confessional statements of the appellants and the co-accused ; the circurnstancia! evidence in the form of recoveries ; the last seen evidence, llyas witness was given up as un-necessary and Muhammad Nawaz as having been won v over. Muhammad Aslam P.W.I and Maula Bakhsh P.W.2 witnesses as to the last seen evidence were declared hostile by the prosecution as they with­ held the same and denied having been intimidated by the accused. The appellants and their co-accused in their statements under section 342 Cr.P,C. made at the trial, denied all the allegations levelled against them. As to their confessioaal statements made before Ch. Arneer Ali Magistrate each of the accused stated that the same were exacted out by the police under torture and pressure and that the same were not voluntary statements. As to the involvement in the case they stated that they had been involved in the case due to enmitv and party faction No evidence was led in defence except that Jahan Khan co-accused tendered a school leaving certificate Ex. D.B. showing his age as 16 years, a certified copy of a bail order Ex. D.C. passed by the High Court qua him and a certified copy of the order Ex. D.D. by which he was acquitted in the Arms Ordinance case. 8. The learned trial Judge believing the prosecution case while relying upon the confessional statements of the appellants and recoveries except the motive found the appellants as guilty. He however acquitted Jahan Khan and Aman Uliah co-accused since according to him their con uct was no! inculpatory, 9. The learned counsel for the appellants has contended that the .appellants were already in the custody of the police before their arrest and for this he has referred to the statement under section 164 Cr.P.C. of Aman Ullah, the acquitted accused wherein it was stated tbat he was in the custody of the police for the last 25 days. The confessional statements were obtained on the ISth day of the arrest of the appellant!. It had been specifically alleged by appellant Shameer and recorded by the Magistrate that the appellants were tortured by the police, as such, according to the Jearned counsel the confessions made by the appellants cannot be treated as having been made voluntarily. The learned counsel has next contended that there is no other evidence except the confessional statements and recovery of shoe P. 3 from the canal at the instance of Shameer appellant and hatchet 'P. 2 (not blood-stained; at the instance of Sher Muhammad appellant. As to the recovery of shoe P. 3 from the canal submerged in waste deep water it is not believable that the shoe remained static within the canal for so many days and that could be brought out after surveying in some- compass. The hatchet recovered being not stained with blood cannot be connected with the commission of the crime so as to snow that the same hatchet was used. It has been emphasised that the confessions were retracted at the trial. The confessions were made after the appellants remained in the custody of the police for a long time, so the confessions have no probative value. After the appellants made their confessions they were handed over to the same Police Officer. In this circumstance the confessions cannot be used against the appellants. The learned counsel has concluded his conten­ tions by submitting that the confessions being not voluntary, cannot be re- was relied uponi in which it was held, that the persons who had made the confessions having been returned to the same police, the confessions could not be taken to be of voluntary nature. In Said Anwar v. The State (PLJ Peshawar 116), it was observed that the accused remained in the polio custody for quite a few days where freely he could hardly have the advice of his relatives. There was no trace of evidence whatsoever connecting him with the crime before the confession and above all the confessional state­ ment was not consistent with the direct testimony against him. Those were the points which militated against the probational value of the confessional statement. On that consideration of the matter the conviction was set aside: Abdul Majid v. The State (PLJ 1977 Karachi 420). In this case there waft a delay of more than 48 hours in recording the confession, so it was observed that there was « string of authorities that where there was am undue delay in the record ing of a judicial confession as that was in the case in hand, no evidentiary value could be placed thereon . In Syed Abiff Hussain Shah v. The State (1983 P.Cr.L.J. 882), it was observed that the contention of the learned counsel that the judicial confession of the accused was to be disregarded as the same was recorded three days after his arrest and that too under duress, had great force. Maskeen v. The State (1983 P.Cr.L.J. 1113), in this case the confessional statement was kept out of consideration since there were certain facts available on the record proving non-voluntary nature of the confessional statement of the accused which was retracted at the trial. One of the considerations was that the accused confessed after he had remained in the custody of the police for four days. In Mohammad Nasim A e ha and another v. The State (1978 P.Cr.L.J. 579) there was a delay of 11 days in recording the confession of the accused' -since his arrest the explanation given for that was not regarded as satis factory, and the same was treated as one of the considerations against the validity of the confession. 10. The learned counsel for the State assisted by the learned counsel; for the complainant while opposing this appeal has submitted that the names of the appellants are fully mentioned in the F.I.R. ; the confessions before P.W.10 Ch. Amir Ali M.I.C. have been properly proved as having., been made voluntarily. There is also in the evidence of P.W.4 Manioor Ahmad that be saw certain persons though not identified at the relevant time at the saint nala whereby on his enquiry he was told that they were catching fish. The recovery of hatchet P. 2 at the instance of Sher Muhammad appellant and the recovery of shoe P. 3 at the lead of Shameer appellant offer sufficient corroboration to the confessions and the fact of the persons having been so seen at the relevant time also provides a circum­ stantial link, so when the confessions are taken alongwith the facts on the . record, the guilt of the appellants stands established to rebut which no defence has been produced. No argument separately on the revision petition have been addressed by the learned counsel for the complainant. 11. In this appeal the learned Sessions Judge Sargodha has mainly relied upon the confessions and has invoked the recoveries as a corrobora­ tory evidence and also the fact that the appellants led the police to the kosha where they had captured Ata Muhammad deceased and from where he was taken to the saim nala. As to the confessions the learned trial Judge has received these as voluntarily made and as such valid in all the respects. 12. In criminal jurisprudence the subject of confession has been regarded as a very delicate one since the probative value of a confession is that if it is proved as voluntarily made by a person confessing then convic­ tion upon that may follow immediately and the Courts are not required to look for corroborative evidence anywhere in a case though as an abundant caution the Judges have been looking for other facts so as to assure them­ selves that the confessional statements happen to be voluntary. The first] t question which has always arisen in such cases is that what moves a parti­cular person to confess his guilt when he knows that his confession may put his own existence to an end. The Jurists have attempted to enlighten by saying that there are certain persons when they commit a crime a sense of remorse visits them as to the gravity of their action and their conscience prompts them as to acknowledge their sin in order to be purged of it. At x the same tims they have said that such a feeling takes its predominance within the context of time as an immediate happening but if the time elapses then the human mind is so constituted that a man instead of submitting to his conscience starts raising justifications in respect with an act however • cruel, grave, sinful and unlawful it may be. In a case of murder it cannot be taken that a murderer after committing the crime remains peaceful in his mind. But if he happens to resist this immediate repercussion then it is very feldom that he comes to confess his crime in order to be purged of it, so it .can be regarded in gist that after committing a heinous crime a person suffers psychological disturbance, if he succumbs to it immediately he con­ fesses and if he resists it for a while then of course he does not. !3. A confession as a general rule of law is receivable as a testimony or s an admission which' is admissible against ics maker. However, sections 24 > 26 of the Evidence Act are exceptions to the genera! rule. If a confession jeontes within the ingredients enumerated in these provisions, then a ccmfes- ,c|sion is neither relevant nor admissible. Now if an exception to a confession [is in issue, the onus lies on the accused to prove that the coafession is hit by any of the exceptions as contained in the Evidence Act, but such an onus has not been regarded by the law Courts as heavier. Apart from this it is evident from various authorities on' tha subject that the law Courts have been looking into the facts and surrounding circumstance independent­ly in order to ascertain the voluntariness or iavotuntariness of a confession and any circumstance giving rise to suspicion as to volantariness has been regarded as sufficient to reject a confession. 14. In the present appeal the confessions of the appellants relied upon jy the prosecution do not happen to have probative value in view of the reasons, firstly because the confessions were made after the appellants remained within the custody of the police for 14 days. The decisions cited above do minimize the value of a confession which happens to have jeeti made by an accused per-on after having been for days together in the custody of the police ; secondly that in his statement Sharneer appellant in an answer to a question put by the learned Magistrate while recording his confession under section 164 Cr.P.G, maintained that they had been tortur­ ed by the police. Now this statement cannot be brushed aside because it cannot be said that it was an after thought and was made only when the confession was retracted ; thirdly that from their thumb marks on the con­ fessional statements the appellants appear as illiterate persons, so the confessions made by them rich in detail as to the facts appearing in a regular sequence bringing out the prosecution case as a whole suiting ail the links, do give an idea that such confessions are a result of some tutoring emanating from seme person familiar with the requirements of law ; and fourthly that the appellants and their co-accused after recording of the confessions under section 164 Cr.P C. were returned to the custody of the same A.S.I., might be with a view to sending them to the judicial Sock up, but such an act by the Magistrate himself, is liable to be depricated as in violation of a rule of iaw stressed upon by the law courts from time to time, the same impairs the value of ?hc confessions. Keeping in view all the aforesaid reasons the confessions made by thei appellants are liable to be rejected appearing as not made voluntarily. \ 15. Once the confessions are ruled out of consideration, then there is no evidence to establish the fact in issue that the appellants aiongwith others killed the deceased and in the absence of a proof of the principal fact the recoveries cannot be invoked as corroboratory because the fact about which •one is to seek corroboration does not exist. The recoveries alone have never been taken as sufficient to prove the guilt of an accused person. Apart from this consideration no importance can be given to the recovery of hatchet P. 2 since it was not stained with blood nor it is an unusual weapon because the villagers do possess such things, towards their husbandry process. The way as the recovery of shoes P. 3 has been alleged at the instance of Shameer appellant from the canal is not believable on the face of the circumstances in which the same was effected. The testimony of Rab Nawaz P,W,7, the brother of the deceased as to the fact that all the four accused persons had led the police to the kasha where they had captured Atta Muhammad deceased and from where he had been taken to the saitn nala, cannot be received as admissible since there was no discovery within the meaning of section 27 of the Evidence Act and the same is hit by sections 25 and 26 of the Evidence Act. it is within the statement made by the S.I. Manzoor Ahmad in his cross-examination that "it is correct that the deceased had been challaned in a number of other criminal cases including a murder case and an abduc­ tion case", so the probability of the deceased having been done away with by some body else cannot be excluded. 16. For the foregoing reasons the case as a whole lacks proper evidence, theaefore, the appeal of the appellants is accepted and as a conse­ quence thereof their conviction and sentences are set aside and they are acquitted. They shall be released forth with if not required to be detained in any other case. Resultantly, the revision petition for enha&semeiH of the sentence of the appellants and against the acquitted accused yet not admitted, stands dismissed. . By.) Appeal accepted

P L J 1984 Cr P L J 1984 Cr. C. ( Karachi ) 237 Present : Z. C. VALIANT, J Syed AFZAL HUSSAIN—Applicant , versus THE STATE—Respondent Criminal Misc. Application No. 924 of 1981, decided on 19-2-1984.- Crinioal Procedure Code (V of iS98j—

-S. 561-A read with Pakistan Penal Code (XLV of I§60>—Ss. 406 & 420—Proceedings—Quashment of—No explanation for of" IS months for lodging report given in FIR—Facts disclosed ia"FIE alearly showing civil dispute between complainant and applicant- Held : No prlma facie commission of offence under Ss. 406/420 FPC having been discloseu ; ~. FIR, continuance of proceedings 10 amount- -to abuse of process of court. [P. 238] A Mr, K. M. Nadeem, Advocate for Applicant. Mr. Abbas Farooqi, Advo'cate tor Respondent. Date of hearing : 14-2-1984. _ JUDGMENT Applicant abovenamed has filed above petition for quashment of pro­ ceedings pending against him, in, the Court of learned A.C.M. Kharadhar, u/s 420/406, on the following facts and grounds :— The facts of {he case are So that in the month of June, 1978, the com­ plainant of this case went to the, office of the appellant Messrs. Foursons Room No. 47, Badri Building, I. 1. Chundrigar Road , Karachi , and bar­ gained for Car No. 037-724 Toyota Corrolla Model 1977. The price of the said car was told by the accused at Rs. 54,000/- and he received from the complainant a sum of Rs. 48,000/- and issued a receipt. The complain­ ant of this case obtained delivery of the car whereupon he came to know that the said car was old' and useless. Whereupon he returned the car to the accused and the accused amount or the car. However till date the accused had neither paid back the bargained amount nor had returned the -car to the complainant. The accused by practicing deception and by deliver­ ing useless car to the complainant obtained Rs. 48.000/- from him and also obtained back ths said car and misappropriated the amount. The learned advocate for the applicant in support of the above petition submitted as under :— That from a bare perusal of the FIR no offence is indicated. That the dispute giving rise to liabilities if any, is of purely civil nature distorted into criminal prosecution with the only view to causing harassment to the applicant and to compelling him to meet the unjustified claim of the so-called complainant under police pressure. That Keeping in view the attending facts and surrounding circum­ stances of the case, the ultimate conviction of the accused is not probable. That there was delay of IS months in lodging of FIR, which has not been explained at all. The learned advocate appearing for the State at the outser submitted •that he was supporting the above petition for quashment as there was delay •of IS momhs in lodging of FIR, which delay has not been explained at ail .by complainant and dispute between the parties is of civil nature. I have carefully considered the above submissions made by the learned advocates before me and have gone through FIR and impugned order dated 7-3-1981 passed m applicant's application under section 249-A Gt.P. C. It is admitted position that FIR in question was lodged after lapse of 5 months and no explanation for said delay has been given In FIR. Read­ ing of FIR clearly shows a civil dispute between complainant and applicant. In view of this, I agree with the contentions of the learned advocate for j. applicant and State counsel Mr. Abbas Farooqi, that the case in question saaeot lead to applicant's conviction and as such continuance of said pro­ceedings will amount to abuse of the process of the learned trial court, as facts disclosed |0 FIR does not disclose even prima facie commission of offence «/ 40$ PPC/420 PPC. Therefore I allow the above petition and quash the proceedings against the applicant, in respect of FIR 114 of 1979 dated 15-10-1979 u/s 406/420 PPC, in the Court of ACM Kharadar, Karachi and discharge the bail bondi executed by applicant in the said case. (M1Q) Proceedings quashed,

P L J 1984 Cr P L J 1984 Cr. C. ( Karachi ) 239 Present: ABDUL RAZAK A. THAHIM, J AURANGZEB ABID and Another—Appellants versos THE STATE and Another—Respondents Criminal Misc. Appln. No. Q. 39/1984, decided on 2-4-1984. 4i) Criminal Procedure Code (V of 1898}—

S. 561-A read with Electricity Act (IX of 1910)—Ss. 32 & 50— Offence against Property Ordinance (VI of 1979)—S. 14—Electricity Act—Offences under—Prosecution for—Initiation by incompetent person—Effect of—Police Inspector filing complaint not competent to lodge report as contemplated under S. 50 of Electricity Act— Held: Proceedings to be quashed but filing of fresh complaint by person authorised under law not to be barred. (P. 240] A 1977 P. Cr. L. J. 109 ref. 4ii) Electricity Act (IX of 1910)- ->

Si. 39 & 50—See: Criminal Procedure Code (V of 1898><-S. 561-A Mr. Gul Zaman, Advocate for Applicant.. Mr. Khalid Ali, Advocate for K.E.S.C. M. A. A. Muhammadally A. A. G. for State. Date of hearing: 12-3-1984. JUDGMENT This is an application under Section 561-A Cr. P.C. for quashment of proceedings under Section 39 of Electricity Act of 1910 and under Section 14 of Offence against Property Ordinance-1979, pending against the applicants ran the Court of Special Magistrate, K.E.S.C. at Karachi . 2. The fact of the prosecution case are that on 27-12-1982, Salch Mohammad Khan, S.H.O. Police Station K.E.S.C. received spy information -that Ahmad Ali Baig resident of House No. 300-A, Moinabad Landhi, Karachi using unauthorised electricity without any valid documents. He went and found that Ahmad Ali Baig had no valid documents and he got this connection through Rasbid Ali Inspector. He went and lodged the ^report. Charge sheet against Ahmad Ali Baig, Rashid Ali and Aurangzeb was filed in the Court of Special Magistrate K.E.S.C. where the case is pending. 3. Mr. Gul Zaman, advocate for petitioners contended that under Sectioner 50 of the Electricity Act, 1910 no prosecution shall be instituted -against any person for any offence under this Act except by the Governanent or the Electric Ins^.ctor or the person aggrieved by the offence in question, tie has relied on a case reported in Pakistan Criminal Law Journal !97Tpage 109. 4. I have heard Mr. Ktialid Ali, Advocate for K.E.S.C. and Mr. A. A. MohammadaUy. A. A. G. for the State. 5. The learned counsel for the State conceded that complaint in the present case has been filed by one Mohammad Saleh, Inspector of KESC Police who is not competent to lodge the report as contemplated under Section 50 of the Electricity Act. He has supported the quashment applica­ tion. 6. I also agree with the view that the Police Inspector is not compe-l tent to file complaint. In the result this application for quashment is accep-I ted and proceedings are quashed. There is no bar in filing fresh complaint! &y a person authorised under the Law. (MIQ) Proceedings quashed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 240 Present : Z. C. VALIANI, J. MUHAMMAD ISMAIL—Petitioner versus THE STATE—Respondent Criminal Revision Petition No. 122 of 1981, decided on 14-2-1984. Criminal Procedure Code (V of 1898)— —S. 439—Revisional jurisdiction—Exercise of—Expert witness-Non examination of—Effect of—Expert witness not examined by pro­ secution to prove that stuff recovered from petitioner was in fact efttras —Held ; Non-examination of expert witness being fatal to prosecution case, both impugned judgments (of lower courts) not tobe legally sustained. [P. 241] 4 PLJ 1981 Cr. C. ( Karachi ) 294 re!. Nemo for Petitioner. Mr. Abbas Farooqi, Advocate for State. Date »f tiearing : 13-2-1984, JUDGMENT The above appeal was admitted on the basis of the decision of this— Court reported in PLJ i9Sl Cr. C. (Karachi) 294 as admittedly no expert witness was examined by the prosecution, before the learned trial court to prove, that the stuff recovered from the appellant was in fact Charas, The learned advocate appearing for the State very rightly conceded that in Ike present case also prosecution did not examine any expert, but , $»0iply relied upon the statement of Excise Inspector in order to prove, that -Jhe stuff recovered flora the appellant was Charas and as such he does not support both the impugned judgments of the learned trial court, as well as appellate'court. The learned advocate for the State submitted, that there » a material irregularity and there is no legal evidence brought on record to -establish, that the stuff recovered from the appellant was Charas in fact. 1 have carefully considered the above submissions made by the learned advocate for the State and have gone through both the impugned judgments and R & P of the learned trial court. It is very clear from the records before me, that the prosecution did not examine any expert witness to prove that the stuff recovered from the appellant was in fact Charas and as such the case reported in PLJ 1981 Cr. C. (Karachi) 294 on the basis of which the above appeal was admitted for regular hearing by me, fully supports the contention of the appellant, that in the absence of such expert's evidence, his conviction cannot legally be maintained. I have gone through the judgment of ray brother Sajjad Ali Shah, J. reported in PLJ 1981 Cr. C. (Karcfai) 294 and I am in respectful agreement for the reasons given in the said judgment! with him, that non-examination of the expert witness was fatal to thip prosecution case and consequently both the impugned judgments cannot' legally be sustained. Therefore I allow the above revision petition and set aside judgment dated 25th July, 1981 of the Addl. City Magistrates. I. T. E. Hyderabad as well as judgment dated !8th November, 1981 passed in Cr. Appeal No. 2 '/SI by learned 1st. Addl. Sessions Judge, Hyderabad by which he upheld the judgment dated 25th July, 1981 and acquit the appellant, by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above petition, (MIQ) Petition accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 241 Present : ABDUL HAYEE KURESHI, C. J. RAHIM BUX~Petitioner versus MUHAMMAD IQBAL and 5 Others—Respondents Criminal Misc. Application No. 577 of 1983, decided on 3-8-1983. (i) Criminal Procedure Code (V of 1898)—

S. 241-A& 265-C— Complaint—Institution of cases upon—Evi­ dence — Gist of—Filing of—Requirement of— Complaint itself normally stating nature and gist of evidence to be produced by com­ plainant, Held : No separate document incorporating gist of evidence to be (necessarily) submitted in court for supply to accused.[ P. 243] A (ii) Criminal Procedare Code (V of 1898)— —Ss. 241-A A 265-C—Complaint—Institution of cases upon—Wit­ nesses—List of—Failure to name witness—Effect of—Held : Court having full and complete power to examine any witness at any stage, proceedings not to be vitiated merely because of particular witness— (examined in court) not named in complaint. [P. 243] B (Hi) Criminal Procedure Code (V of 1898)—

_S. 561-A Proceedings—Quasbment of—Enmity — Determination of—HId : Enmity being double edged weapon, question of cemplainant having falsely implicated accused for reason of enmity (being question of fact same) to be determined on basis of evidence. [Pp. 243 & 244]C Mr S. Nisar Hnssain, Advocate for Petitianey. Date of hearing : 17-7-1983. JUDGMENT The petitioner along with respondents No 2 to 5, is standing trial before on the Illrd Additional Sessions Judge. Hyderabad on charges of illegal confinement and dacoity in respect of the property of respondent complainant, Mohammad Iqbal. This prosecution started on 1-3-1979 on a direct complaint by respondent No, 1, process has been issued and the case is pending. It is stated by learned advocate that no witness has been examined so far. The petitioner and the co-accused had earlier filed an application foi quashment in this Court. This was registered as Cr. Misc. Application No. 522/80 By an order of my learned brother Mr. Justice Z. C. ViSiani dated 4-2-1982 this application for quashment was dismissed oa the ground that it was not pressed because the appiicaut wanted to avail of the alternate remady by way of an application u/s 265 K Cr. P. C. before the trial Court, u/s 265 (K.) Cr. P. C. and the same has been dismissed by an order of Illrd Additional Sessions Judge, Hyderabad , Sind dated 17-5-1983. The present application for quashment of the proceedings on the complaint. The main argument of Mr. S. Nisar Hussain, Advocate is that the provisions of sections 241-A Cr. P. C. and 265 Cr. P. C. had not been complied with. It is submitted that copies of the complaint have been supplied to the applicant and the co-accused but the gist of evidence had not been supplied. Subsection (2) of section 241-A Cr. P. C. read as follows:— " In all cases instituted upon a complaint in writing, the complainant shall:- state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and within three days of the order of the court under section 204 for issue of process to the accused, file in the Court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused; Provided that the provisions of this sub-section shall not apply in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his duties." Section 265-C Cr. P. C. also contains more or less similar provisions at Section 241-A Cr. P. C. Rclevaot provisions read as follows:— "(2) la all cases instituted upon a complaint in writing;— (a) the complainant shali— (0 state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is iikeiy to adduce at the trial; and (ii) within three days or the order of the Court under section 204 for issue of process to the accused, file in the Court for supply to the accused as many copies of the complaint and any other document which he has filed with his complaint as the member of the accused; (4) copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or Section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial." On reading of the two provisions re-produced above it would appear that the requirement of the law is that the complaint must contain the substance of the allegation, the names or the witnesses aad the summary of the evidence which the complainant is likely to produce at the trial. The other requirement of these provisions is that copies or the complaint should be filed in the Court and the same should be supplied to the accused. To such extent ths learasd advocate makes no grievance, but his grievance is that copy or the summary or the gist or evidence has not been supplied. On a reading of the complaint one can never be in doubt that the gist' of evidence is contained in the complaint itself. The Code does not state that a separate document incorporating the gist of evidence is to be submitted in the Court for supply the accused. Normally the complaint itself states the nature aad the gist of evidence that will be produced. Thire if no non-compliance with the aforesaid provisions of law. The next ground urged by the learned advocate is that during preliminary enquiry the Court had examined one Sbahzad who had not been named as witness in the complaint nor shown as a witness in the list of witnesses. It is contended that two provisions namely sections 241-A and 265-C of the Cr P. C require that the complainant shall state the names of his witnesses in the complainant. This however, does not mean that a person who is not named in the complaint as a witness can not be examined at all, nor can it be aside that merely for tae fact of such a persjn being examined as a witness, the entire proceedings will be defeated and case itself should be quashed. It has also to be taken into consideration that sections 241-A C nd 265-C of the Cr. P. C, would apply only after issuance of process Even if the complaint did not name a particular witness, it cannot be held that the proceedings were vitiated only for such a reason, more so as the Courts have full and complete power to examine any witness at any stage. Taking a contrary view may often defeat the ends of justice. This contention is also without substance. 'The next contention is that the ease was mala fide and was the result! of j^revious enmity, Eanmy is 3 double edged weapon and whether theK" {complainant has falsely implicated the accused for reasons of enmity is a {question of fact which is to be determined on the basis of the evidence' The learned advocate has lastly contended that the allegation of complainant that the applicant and co-accused had beaten him and broken the ankle of his foot is belied by the comments that had been submitted before this Court in C. P. No. 2151 of 1979. It has been poined out that when the respondent/complainant was produced before the S. D. M. for remand he made no complaint in regard to having been beaten by the accused persons. A copy of the comments submitted by the S. D. M. in the said Constitutional petition has been placed on record. I have seen the said comments and find that the S. D. M. has written that respondent/ accused has some trouble in the right foot and therefore the Superintendent of jail was directed to produce the complainant before the Medical Officer. Such certificate of the said medical officer before whom the complainant was produced has not been placed before me. This argument cannot advance the case of applicant. I see no substance in this petition which is dismissed. I, however, direct the Trial Court to hear this case, proceed with the same expeditiously, and dispose of within 6 months. Compliance be reported to this Court. (TQM) Petition dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 244 Present : Z. C. VALIANI, J MUHAMMAD YOUNUS and 2 Others—Applicants versus THE STATE—Respondent Criminal Misc. Application Nos. 310 & 183 of 1983, decided on 15-3- 1983. Criminal Procedure Code (V of 1898)—

Ss. 498 & 499—Bail—Grant of ~ Bond — Excessive amount of— Effect of—Surety amount—Reduction of—Special Judge while grant­ ing bail practically nullifying its order by imposing heavy surety amount of Rs. 5,00,000 Held : Object of taking of sureties being well known, courts to be expected to take into consideration financial position of accused persons before it—Two of petitioners petty busi­nessmen while third allegedly student—Exact amount allegedly mis­ appropriated also not determined—Held : Surety amount to be re­ duced from Rs. 5,00,000 to Rs. 50,000 in respect of each applicant. P. 245JX Mr. Raja Qureshi, Advocate for Applicant. Mr. I. Memon, A. A, G. for State, Date of hearing : 15-3-1983. ORDER The learned A.A.G, who is present in Court today has been given notice of the above application and consequently he submitted that the surety amount is prima-fade exliorbitant and as such he has no objection, if the same is reduced reasonably. Without going into the merits of the case pending against the appli­ cant, but keeping in view the last para, of order dated 13-3-1983, of the learned Special Judge (Central) Karachi by which appellants have been granted bail, I considered the surety amount per se is exhorbitaot and as such grant of bail is practically nullified by imposing such heavy surety amount. In this connection the object for taking sureties has now well been established and the courts are expected to take into consideration status as well as financial position of the accused persons before it. In the present case two accused are said to be petty businessmen and one of them is alleged to be student. The exact amount alleged to have been misappro­ priated is also not yet determined. Keeping io view these facts, I allow the above application and reduce the surety amount from sum of Rs. 5,00,000 to Rs. 50,000 in respect of each applicant and direct the trial court to accept the sureties from the appellants in accordance with this order, in respect of the bail already granted to the applicants by the learned trial court. Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 245 Present : Z. C. VALIANI, J ZAHID HUSSAIN SHAH and Another—Applicants versus THE STATE—Respondent Criminal Bail Application No. 745 of 1983, decided on 13-9-1983. Criminal Procedure Code (V of 1898)—

Ss. 497/498—Bail—Grant of—Successive applications for—Investi­ gating agency—Findings by -Effect of—Three Police officials in their investigations finding case against applicants false and recommending withdrawal of prosecution—Such fact, however aot brought before . High Court <n earlier application—Held : Bail to be allowed in cir­ cumstances. [P. 246] A PLJ 1979 SC 263 & PLD 1968 SC 349 ref. Mr. Muhammad Hayat Juaejo. Advocate for Applicant. Mr. Sattar A. Shaikh, Additional A. G. for State. Date of hearing : 13-9-1983. ORDER The learned advocate for the applicants submitted, that this second bail application has been moved on the additional ground, that three police officials ia their investigation have found case against the present applicants, as faise and have recommended withdrawal of the prosecution, but this fact was not brought to the notice of this Court, at the lime of hearing of earlier bail application, which was dismissed on the sole ground of the law laid down by the Hon'ble Supreme Court, in the case reported in S980 SC MR 203. !n addition to this the learned counsel submitted, that the said decision of the Hon'ble Supreme Court was in respect of special leave to appeal and in the fact of the judgment of the Hon'ble Supreme Court reported in P L D 1968 SC 349, that no dictum or judgment of the Hon'ble Supreme Court creates any hurdle ia the matter of bail and as the said judgment cannot be an absolute bar for grant of bail, specially in view of this additional ground urged by him which is supported by crertified copies of the said three reports of the investigation agencies. In support of this contention, the learned advocate for the applicant relied upon case reported ia 1979 S C M R 377. The learned Addi. A. G, appearing for the Stale, in view of the above facts and the law cited by the learned advocate for the applicant does not oppose the above bail application. L- have carefully considered the above submissions made by the learned advocate before me and have gone through my earlier order by which the first bail application moved by the applicants was rejected by me. The sole ground on which I have rejected the earlier bail application was decision of the Hon'b!e Supreme Court reported in 1980 S C M R 203, although on merits, I had come to the conclusion, that this was a fit case for grant of bail. The learned advocate for the applicant has now additionally relied upon case reported in PLJ 1979 SC 263, in view of the three reports of the investigating agencies, that the applicants have been falsely involved ia this case and there is not evidence for the commg in support of the prosecution case, as well as on P L D 1968 SC 349 that the decision of the Hon 5 bie Supreme Court reported in 19SO S C M R 203 is not bar to grant of bail on merits, if otherwise this Ceurt considers fit grant such bail. The ease of Hon'ble Supreme Court reported in P L D 1968 SC 349 was not brought to my notice, when I passed the earlier order nor the reports of the investigating agencies, the certified copies of which have been produced now by the learned advocate for the applicants were before me. Even otherwise ob merits, I have held in earlier order, that this is a fit case for grant of bail and further since the learned Add!. Advocate General has no objection to grant of bail therefore m view of these facts andlaw laid down by Hon'ble SC in P L D i9j8 SC 349, I allow the above application and direct, that the applicants be re. 'leased on bail on their furnishing sureties in the sum of Rs. 3Q.OOO/- each with the P. R, bond in the like amount, to the satisfaction of the teamed trial Court. Bail allowed.

PLJ 1984 Cr PLJ 1984 Cr. C (KaraeM) 247 Present : ABDUL RAZAK A. THAHIM, J SAMI NASIR HUSSAIN-Applicant versus THE STATE—Respondent Criminal Bail Application No. 182 of 1984, decided oa 2-4-1984. (i) Criminal Procedure Code (V of 1898)—

S. 498 read with Extradition Act (XXI of !972)~S. 19— Person requested for transportation for trial abroad—Bail of— Grant of—Petitioner allegedly defrauding American Bank to extent of 1.6 million U. S. dollars—U S, Government requiring petitioner to be transported for trial the America—Held : Superior Courti though ordinarily granted bail in some cases even involving huge amounts, discretion to grant bai! not to be exercised in favour of applicant in circumstances. [P 24«1.4 (il) Extradition Act (XXI of 1972)--

.3. 19—See : Criminal Procedure Code (V of 1898)—S. 498. Syed Sami Ahmad, Advocate for Applicant. Mr. Mohammad Sbrabins Memon, A A. G. & Mr. Abdus Sattsr Advocate for Respondents, Date of hearing : 22-3-1984. ORDER This is an application on behalf of one Sami Nasir Hussain son of Sabir Hussain filed under Section 498 Cr. P. C, read with Section 19 of the Extradition Act 1972. 2. The facts are that the case against the applicant, under Section 1343, Article 18 of the U. S. Code has been registered in America . The allegations are that he defrauded the Girard Bank, Wilmington , Delaware U. S. A. to the extent of U. S. 1.6 million equivalent to Rupees Two crores and Eight lacs approximately in Pakistani currency. The United State Government requested the Government of Pakistan for the arrest and transportation of the applicant for his trial in U. S. A. The applicant was arrested bv F. I. A. Police on 10-10-1983 and produced before the Vth A. C. M. (West) Karachi in terms of section 4 of the Extradition Act, 1972 hereinafter referred to as Act). The Government of Pakistan appointed a Magistrate to enquire the case. The enquiry is in progress. The applicant moved the Enquiry Magistrate for bail but his application was rejected and he then went to the Court of Sessions but his bail plea was also rejected by the Additional Sessions Judge, Karachi by an order dated 9-2-19S4. Thii bail application came up for hearing before this Court on 11=3-1984. The notice was ordered to the Deputy Attorney General as Extradition Act proceedings are involved in the matter. 3. Mr. Syed Sami Ahmad, advocate for the applicant has contended that the offence for which the applicant is charged is punishable with 5 years imprisonment and fine of U. S. $ 1,QOO/-, therefore grant of bail to the applicant is a rule and refusal is an exception because offence is not punishable with death or imprisonment for life. He has cited S. C. M. R. 1969-page 233, where bail was granted inspite of the fact that huge amount was involved in that case. He also relied upon the casei reported S. C. M. R. 1978, page-64, 1983 Pakistan Criminal Law Journal page- 20 0, 1981 Pakistan Criminal Law Journal page-141, 1977 S. C. M. R. page-474, 1972 Pakistan Criminal Law Journal page-188 1968 P. L. D. S. C. page-349and P. L. D. 1956 Karachi, page-381. Mr. Sami Ahmad has further submitted that enquiry is not likely to be concluded. The applicant is Engineer and suffering hardships in the jail. Mr. Abdul Sattar, learned counsel appearing on behalf of Deputy Attorney General has submitted that enquiry is almost complete and the case is fixed for arguments. He has further submitted that delay is being caused by the applicant. He states that applicant is an American national and if he is released on bail he can abscond and may not appear before the competent courts of law in United States . He ha« vehemently opposed the bail application. Mr. Muhammad Ibrahim Meinon, A. A. G,, for the State hs supported the contention of Mr. Abdul Sattar and stated that this is not a fit case for bail when the enquiry is on the last stage and final decision is being taken very soon. In the present case the applicant was fugitive in the terms of Act therefore he has properly been arrested and is being deal with in accor­ dance with law. The Constitution Petition No. D-839/1983 was also filed by which the detention of the applicant was challenged and the same was disposed of as not pressed by an order of this Court dated 8-12-1983. 7. The circumstances of the present case are very different as the applicant will be tried in U. S. A. and not in Pakistan . The only it is to be seen in this matter whether prima facie case is made out against the applicant then only he could be transported and no conviction can be awarded to him by the Courts in Pakistan . This is not a case where he has to appear before the Court in Pakistan but if bail is granted he has to appear before the Court in U. S. A. I agree with Mr. Syed Sami Ahmad advocate for the applicant that ordinarily the bail has been granted by the Superior Courts even huge amount is involved in some cases but this is an exception where not only huge amount is involved but the applicant is a national of America and if it is found proper by the authorities he has to be transported. There is no guarantee that he will go and appear in the Court of U. S. A., therefore this is a case of exception where discretion to grant bail can not be exercised in favour of the applicant. Since the 'statements have been made at bar that enquiry proceedings are almost complete there seems to be no reason to release the applicant on bail at this stage. However, I direct the Enquiry Magistrate to proceed enquiry day to day and complete the proceedings within two (2) months. The bail application is dismissed. (TQM) Bui! refuted.

PLJ 1984 Cr PLJ 1984 Cr. C, ( Karachi ) 249 Present; : Z. G, YALIAN!. J MUHAMMAD ISMAIL—Applicant verms THE STATE and 3 Others—Respondent Revision Application No. 169 of 1930, decided on <v-M98.t Criminal Procedure Cede (V of

Ss. 203 & 439~Compiain£—Dismissal of--Order ofs against—Trial court dismissing complaint (under S. 203, Cr, P. C.) on grounds of respondents having not bees chaHaned in State case arising out of very incident aod .applicant's application to jam respondents a^ co-accused having been rejected by its predecessor court—Held : Trial Court being neither competent to Jake »nto consideration police investigation conducted in State case nor being hound by order of its predecessor, case fo be remanded to trial court for further inquiry in accordance with provisions of S 203 Cr, P, C. [P. 250JA & B Mr. Sadreddin Jtineja, Advocate for Applicant. Mr. Sehail Muzaffar, Advocate for State, Mr. Mufcaatmad Hayat Juoejo, Advocate for Respondents NV®, 2 to 4, Date of hearing : 2-2-1983, JUDGMENT Applicant abovenamcd, being aggrieved by order dated !2-IQ°198Q of the teamed Hnd. Addl, Sessions Judge, Dadu, by which applicant's, direct complaint filed against the respondents Nos, 2-4 was dismissed u/s. 203 Cr. P. C., has preferred the above petition on the facts and grounds mentioned in the memo, of above petition. 2. The main contention urged by the icaraed advocate for the applicant before me was, that the Seamed trial court has gone beyond the scope of section 203 Cr, P, C. and relied upon the police inquiry conduct­ ed in a murder case arising out of the same incident, in which the respon­ dent Nos. 2-4 were cot chalianed before the learned trial court in question, In support of this contention, the learaed advocate for the applicant relied upon case reported in 1969 Pak, Cr. L. J. p. 692. 3. The learned advocate for respondents Nos. 2-4 on the other hand submitted, that revision is an equitable jurisdiction and since the only one injury has been attributed to Bashir, the order of dismissal of the private complaint is legal and ought not to be interfered with in present petition. The learned advocate for respondents re!ied upon case reported in PLD 1973 Kar, p. 478. 4. The learned advocate appearing for the State submitted,, that the order of dismissal of the private complaint of the applicant is legal ar,d ia accordance witfe law and as such he fully supports the I have carefully considered the above submissions made by the learned advocates before me and bave gone through the impugned judgment as well as cases cited by the learned advocates before tae. The provisions of section 203 Cr, P. C. are very clear, that the learned trial court had to only consider the statements recorded before it, and/or in inquity conducted under its orders, in respect of the complaiat in question However, i find from the impugned order, that the learned trial court has taken into consideration the investigation conducted by the police in the Sute case arising out of very incident, in which the present respondents were nol chalianed, as their pleas of aiibies were accepted by the police, la addition to this the learned trial court was under the impression, that on account of earlier order dated 15th June, 1980 of his predecessor, in Sessions case No, 87/79, where applicant's application to join the respondents as co-accused persons was rejected, he could not issue process in the private complaint in question, as this would amount to reviewing the said order of his learned predecessor and as such he has no powers. This conception of the learned trial court is misconceived, as in my opinion the learned trial court was neither bound by order dated 15th June, i980 passed in Sessions Case No. S7/78 by his learned predecessor nor the iearaed trial court could have taken into consideration the police investigation conducted in the said ease, in the result of which the respondeats is question were not challaced, ia Sessions Csse No, 87/78. 7. Therefore I set aside tine impugned order and remand back the lease to the learned trial court for further inquiry, in accordance with the ^provisions of section 2 3 Cr. P, C. The learned trial court however, twill be at liberty to get on record the papers relating to the inquiry con­ ducted by the police in Sessions Case No. 87/78 and thereafter consider the same aiongwtth the statements recorded in preliminary inquiry, after giving full opportunity of hearing to the applicant in his capacity as complainant . and then pass the appropriate order as it may deem fit, in accordance with the provisions of section 203 Cr. P. C., in respect of the private complaint ia question of the applicant. 8. The above petition judgment. disposed of in the terms of the above (TQM) Order accordingly.

FLJ 1984 Cr FLJ 1984 Cr. C. ( Karachi ) 250 (Special Appellate Court of Customs, Sind ) Present: Z. C. VALIANI. J THE STATE-AppSiwrnt versus Chaudhary GHULAM RASOOL and Another—Respondents Special Criminal Misc. Application No. 19 of 1983, decided on 25-3- 1984. (I) Cisfoias Act (IV of 1969)—

S. 156 (8) read with Criminal Procedure Code (V of 1898)—S. 497 (5)—Smuggling Abetment of— OFsnce of—Bail—Grant of—Trial Court allowing bail to respondents on ground of they being abetters, no conviction under S, 156 (8) to be possible—Held ; Abettors being equally responsible for smuggling, order of trial court not to be sus­ tained. [P. 252 J A (iiy Criming! Procedure Cede (V of 1898)— __Ss. 497 & 498 read with Customs Act (IV of 1969)—S, 156(8)— Bail—Grant of—Oral application for — Respondents not beneficiaries of goods but allegedly abetting offence (of smuggling) committed by real beneficiaries — Such real beneficiaries aiready granted bail— Special Judge admitting respondents to bail on ground of they being abettors, no conviction under S. 156(8) to be possible—Held : Real beneficiaries of goods having already been granted bail, such conver­ sion not to be refused to respondents -Held further : Abettors of smuggling beiag equally responsible, bail granted by Special Judge to be cancelled but oral application of respondents for grant of bail to be allowed (in circumstances). [P. 252 j B & C (III) OMtOBM Act (IV ©f 1969)— ——S. 156 (8)— See : Criminal Procedure Code (V of 189S}—Ss. 497 A 498. (I?) Criminal Preettee C®!e (V of 1S9S)— ——S. 497 (5)—See : Customs Act (IV of 1969)—S, 156 (8). Additional Advoeafe General for State. Mr. Raja Qarestsi, Advocate for Respondent No. 1. Mr. Nawaz Khan, Advocate for Respondent No. 2. Dates ©f ileus-lug : 16-2! IS & 22-3-1984. ORDER The State has filed the above application for cancellation of the bail granted to respondents Nos 1 & 2 by the learned trial Court, vide its order dated 2nd July, 193, on the fact and grounds meatioaea in the above petition. The learned Additional Advocate General appearing for the State at the outset submitted, that the learned trial Court failed to note, that even abetment of the offence of smuggling comes under Section ! 56 (8) of the Customs Act, 1969 and as such whether they are actually smugglers or not, have nothing to do with this legal position and therefore under this mistake learned tria! court granted bail to the respondent, on the assump­tions that the offence committed by them would fall u/s 156 (89) of the Customs Act, 1969, which is punishable with 6 years and on this ground alone the learned Addl. Advocate General submitted s that the above petition is liable to be granted by this Court. On merits the learned Additional Advocate General submitted, that but for the abetment of these two respondents, the beneficiaries could not have been able to carry on smuggling in question and as such he opposes their bail application even on merits. The learned Advocate appearing for respondents Nos. 1 & 2 on the other hand submitted, that no doubt the learned tria! Court misread the provisions of Section 156 (8) of the Customs Act, 1969 sod therefore came to a conclusion, that the offence if any committed by the respondents would fall under Section 156 (89) of the Customs Act, 19b9 and would be punishable with only 6 years and consequently granted baii on that basis, but on merits the respondents, who were not the beneficiaries of the goods in question ars entitled to grant of bail, as all other co-accused persons who were really beneficiaries of the goods in question have been granted bail, either by the leaned trial Court or by this Court in Cf. Bail AppSn. No, 24 of 1983 and on this ground alone the respondents are entitled to bail. The learned counsel further submitted, that the state­ ment of the prosecution witnesses ate such, that the case of the prosecution against the present respondents would require further inquiry at the stage of trial. I have carefully considered the above submissions made by the learned advocates before me and have goae through the impugned order as well as FIR and the order passed by my brother Alt Nawaz Budhani J in Cr. Bail Appln. No, 24 of 1983 on 31st July, 1983 in respect of coaccused. The grant of bail by the Seamed trial Court on the grouad that espondents could not be convicted u/s 156 (1) is misconceived, as the earned trial Court has failed to note the proviso to the mid ieclioa, according to which even the abettor would be equally responsible for ggling if j I could be proved thai be abetted sucb szavggli&g. la view of this impugned order dated 2nd July, 1983, by which respondents were granted bail by the learned trial Court cannot be sustained. However, ince learned counsel for respondent requested for consideration of grant of bail to the present respondent on merits, in view of the fact, that the respondents have remained on baii for considerable time and account of the fact, that other co-accused persons, who were really beneficiaries of the goods in question have already been graated bail by the learned trial Court and/or this Court. I have considered their submissions on thu account. If is admitted position, that the goods in question were nei­ ther imported by the respondent! Nos. 1 & 2 nor they are the beneficiaries of the said goods and the only allegation against them is of alleged abet­ ment of the offences committed by the real beneficiaries. I have carefully gone through the statement of the prosecution witnesses recorded uader S. 161 Cr. P. C, and have taken iato consideration also the fact, that the real beneficiaries of the goods in question have already been granted bail, la view of statements of the PWs so far produced before me, ia my opinion case against respondents would require further inquiry at the stage of trial. Since other co-accused have a.ho been granted bail, although they are the real beneficiaries of the goods in question, it would be 'unfair to refuse bail to the present respondents on merits, as the learned trial Court did not consider this aspect further more as the rcpoodents have remained on bail right from 2nd July, 1983, « Therefore while allowing the above application for cancellation of bail, ride order dated 2nd July, 3983, and cancelling the bail granted to respondents, by impugned order, I allow oral application of respondents for grant of bail on merits and direct that both tbe respondents be released on bail on their finishing sureties, in the sum of Rs. 50.000/- each, with PR Bonds is the like amount, to the satisfaction of the learned trial court, as beneficiaries of the goods in question, the other co-accused persons, have been already granted bail, on merits. Any observations made by me oo merits of the case are tentative and as such shall not be binding on the learned trial court, whiie disposing off the above case on merits. (TQM) Order accordingly

FLJ 1984 Cr FLJ 1984 Cr. C. ( Karachi ) 253 Present : ABDUL RAZAK A. THAHIM, / &ALEEMULLAH alias ABDUL KADIR—Applicant Versus THE STATE—Respondent Criminal Revision Application NTos. 113 & 114 of 1981, decided on 2-4-1984. (i) Siad Children Act (XIV of 1955)--

S. I10(d) read with Bombay Children Act (Xlil of 1924)~S 27(h) & Criminal Procedure Code (V of 1898)—Ss. 435, 439 & 561-A— Youthful offender— Conviction of-—Challenge to—Trial Court pro­ ceeding with case and convicting petitioner under S. 27(h) of Bombay Children Act despite repeal of same at time of trial—Held : Convic­ tions under Bombay Children Act being illegal, same to be set aside and ease to be remanded with directions to be proceeded under Siad Children Act, 1955. [P. 254] A & B fii) Bombay CMMtea Act (XIII of 1924)— ——S. 27 (h)— See : Sind Children Act (XFV of 155}—S. 110 (d). (fii) CrimsBai Procedure Code (V of 1898) .... ——Ss. 435, 439 & 561-A- S. H0(d). Mr, Atttar Ali Kazi, Advocate for Petitioner, Mr. Jalftlnddin Bal«cb, Advocate for State. Date of hearing : 11-3-1984. JUDGMENT These two Criminal Revision Applications Numbers Cr. Rev. 113/81 and Cr. 114/81 have been filed under Sections 435/439, 561-A Cr. P. C. challenge the convictions of the applicant in two separate cases under Bombay Children Act, 1924. The applicant was challaned under Section 302 IP P C aad !3-D Arms Ordinance and be has been convicted under Section 102 P P C and sentenced {<> snfTcr imprisonment for JO ysss-f under Section 13-D Arms Ordinance to suffer R. I. for one year by Sessions Judge, Dadu in separate judgment dated 22-1G-1981. 2. ib these revisions one legs! point is involved therefore I propose to dispose of both the revisions by £ single order, 3. The relevant facts are that on S-10-1974 applicant who was student of Government High School Dadu committed murder of Ghulam Mustafa a college student by firing Pistol shot. The learned Sessions Judge convict­ ed the applicant in two accounts in separate judgment as stated above. The learned Judge in his judgment bas mentioned that at the time of incident applicant was a child. He proceeded with the case under the provisions of Bombay Children Act, 1924 and convicted him under Section 27 (h) of the above Act. 4. Mr. Akhtar Ali G. &azi, advocate for the applicant has challenged the proceedings and contended that at the time of trial the Bombay Children Act, was not the law of land as it was repealed by notification dated 21-11-1979. He has submitted that application should have been tried under Siad Children Act, 1953. He further argued that under Section 68 of Siod Children Act, no youthful offender shall be sentenced to death or transportation of life or imprisonment. He has also cited the cases reported ia 1980 Pakistan Criminal Law Journal Page 550, wherein it has been held that youthful I, offender for the purposes of Siad Children Act, 1924, cannot be sentenced to imprisonment or imprisonment for life and according to him the same provision has been repeated in Sind Children Act, of 1955. He has also referred to a case Bacho alias Abdul Jabbar vs. The State Pakistan Criminal Law Journal (1981) page. 229, wherein it was held that accused at the time of initiating of proceedings was 16 years of age and was senteaced to imprisonment of life but Hon'ble Judge of this High Court referred that case to the Provincial Government for taking appropriate action as provided under Section 68 (2) of the Sind Children Act. 5. Mr. Jalaluddin, advocate for the State has frankly conceded that trial is illegal. 6. In the present case charge against the applicant was framed on 15-4-1978 and judgment was announed. Oa 22-10-1981 00 both the above Idates Bombay Children Act of 1924, was already repealed but the learned Stria! Judge proceeded with tbe case under that Act and convicted him, lUnder Section 110 (d) of the Sind Children Act which read as under:—- "Where it is provided that all proceedings peadiQg before the Court under the repealed Act he disposed of by the Court notwithstanding anything in. this Act as if they were cases, proceedings and appeals under this Act." 7. So in lay view the cases should have proceeded under the Sind Children Act, 1955. The convictions under Bombay Children Act are therfore illegal. I set aside the convictions passed in the above Sessions 4 cases. The cases are remanded back to the Court of Sessions with direc­ tions to proceed with the cases under the Sind Children Act, 1955, sad decide on merits as early as possibic. (TOM) Csses remanded.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 255 [ Multan Beosi) I'rejeoi : MUHAMMAD ZAFARULLAH. J MUHAMMAD WASEEM—Petitioner versus ADDITIONAL SESSIONS JUDGE. Dera Ghazi Khan and 3 Other— Respondents Writ Petition No. 1356/1983, decided on 14-2-1984, (I) Criminal Procedure Cede (V ©f 1898)— —-—S. 63—Person apprehended—-Discharge of — Order of — Held : Import of order under S. 63 being none other thaa release of accused person from custody such order in no way to be interpreted as cancel­ lation of case or stopping of investigation. [P. 256 '] A (ii) Criminal Procedure Cod (V of 1898)—

-Ss 63 & 439-A—Order of discharge—Challenge to—Revision- Competency of—Held : Order of discharge under S. 63 being only administrative order, same not to be interpreted to be order of closing investigation and not to be susceptible to interference in revision. [P. 25?] C (HI) Criminal Procedure Code (V of 1898)— ——S. 63—Discharge—Order of—Effect of—Police found not justified in arresting accused—No justification even found for remanding accused to custody—Held : Magistrate to be competent to direct release of accused person even without formal bail order—Held Far­ ther Relief to be effectively granted by Magistrate to person arrested or detained without sufficient cause—Investigation, however, not to be smothered and to go on in accordance with law until police submits final report. [P. 257] D (iv) Pakistan Pens! Code (XLV of I860)— ——S. 182 read with Criminal Procedure Code (V of 1898)—S. 63— Discharge of person apprehended — Effect of— Perjury—Offence- Magistrate while ordering discharge of accused under S 63 of Crimi­ nal Procedure Code also initiating action against complainant under S. 182, Pakistan Penal Code—Held : Order (of initiation of proceed­ ings under S. 182 PPC) to be premature before completion of investi­ gation by police. [P. 257] E (?) Investigation—

Proceedings before police—Interference with—Held : Proceedings before police in investigation being proceedings over which Magis­ trate alone to have control, no interference to be made with same by police. [ P. 256] B (?j) Criminal Procedure Cod (V of 1898)-- _S. 63— See : Pakistan Peaal Code (XLV of ifcoOj—S. 182. Mr. Asif Saeed Khan Khosa, Advocate for Petitioner. Syed TassMtaq Hassain Jillani, A. A. G. for State Respondent No. } in person. Date of liearisg : 14-2-1984. JUDGMENT Fayyaz Hussain respondent No. 2 owns a business concern kaown as Shaheen Corporation in Dera Ghazi Khan. On 2-8-1983 he reported to the police that Muhammad Waseem petitioner 'vho had been working earlier at the business premises and removed eleven comprosors from the Refrigerators and has thus committed theft. The police arrested the petitioner on 3-8-1983. He was remanded to police custody on the request of the police till 12-8-1983 and then on a further request the remand was extended to 17-8-1983. On 18-8-1983 the police applied that the petitioner/accused be remanded to the judicial custody. The Magistrate declined to grant the remand to judicial custody as according to the Magistrate the police had not been able to find any incriminating material against the petitiorer. The Magistrate accordingly vide his order dated I8-S- 1983 discharged the petitioner/accused under section 63 readlwsth Section 344 of the €>,. P. C. He also directed the pol ice to start proceedings against the coaip!a;naat us JS2 P. P. C. The complainant challenged these orders in revision which came up before Ch, Muhammad Kbalil, learned Additional Sessions Judge. D. (>. Khan who yiJe his order dated 26-10 1 983 fouad that the Magistrate was not competent to order the discharge of the accused as the police had yet to submit a final report under section !73 Cr. P. C The revision petition was allowed and the order dated 18-8-1983 were set aside. The prosecution was allowed to proceed in accordance with law. The accused has brought this petition to the High Court challenging the orders of the learned Additional Sessions Judge dated 2610-1983 on the ground that the orders of the Magistrate were administrative in nature and no revision was competent. It has also been argued the revision petitiou, in any case, was misconceived as it was wrongly assumed by the learned Additional Sessions Judge that by discharging the accused under Section 63 of the Cr. P. C. the Magistrate has closed investigation. 2. After go;ng through the order of the Magistrate dated 188-1983 and of the Additional Sessions Judge dated 26-10-1983 it is clear that both the Courts were of the view that by discharging the accused under Section 63 the criminal proceeding have come to an end. This is obviously i misconception of law. The import of an order under section 63 of the r. P. C. in none other than the release of the accused person from custody. It cannot in any way be interpreted to be the cancellation of i case or stopping the investigation. It is well established that the proceed ngs before the police investigation arc over which the police alone has control and a Magistrate has no power to interfere with such proceedings. Therfore clearly the order of discharge under Section 63 cannot be interpreted to he an order of rinsing the investigation. This ord^r is therefore, only an administrative order and is not susceptible to rence in revision. The revisional orders of the learned Additional Sessionsjc Judge are, therefore, without lawful authority. Section 63 makes a provision for a Magistrate to direct release of the accused person even without a formal bail order when he comes to the conclusion that the police was not justified in arresting the accused or, when the Magistrate finds that there is no justification for remanding the accused to custody. A Magistrate can thus effectively grant relief d to a person who may have been arrested or detained without sufficient cause, but by doing so he cannot smother the investigation, which can go on in accordance with law until the police submit its final report. Of course the police cannot rcarrest the accused without the order of the Magistrate. As regards the order of the Magistrate that action be initiated against the complainant under section 182 P. P, C. it may be observed that this order is premature as the investigation has not come to an snd and therefore it cannot be concluded that the information provided by the complainant to the police was false, The result of the above discussion is that the order passed by the learned Additional Sessions Judge daied 26-10-1983 are set aside. The orders of the Magistrate dated 18-8-1983 are restored except where he directed the police to take action under section 182 P. P. C. The orders of the Magistrate to that extent are modified. The orders of the Magistrate releasing the accused and discharging him under section 63 of the Cr, P, C. are lawful except that they cannot be read to have brought an end to the investigation which can continue in accordance with law. fTQM) Order accordingly,

PLJ 1984 Cr PLJ 1984 Cr. C, ( Lahore ) 257 [ Maltao Beach ] Present ; IJAZ NISAR, J. NADEEM MANZAR MALIK— Petitioner versus STATION HOUSE OFFICER, POLICE STATION A DIVISION. SAHIWAL and 5 Others—Respondents Writ Petition No. 193/1984, decided oo 9-4-1984. (i) Provisional Constitution Order (CMLA's 1 of 1981)— -- Art. 9 read with Criminal Procedure Code (V of 1898)— Ss. 154 to 176, Police Act (V of 1861)— S. 23 & Police Rules, 1934— R, 25.2— Registration of case — Effect of' — Police — Statutory obligation to investigate— Writ jurisdiction— Interference in— Held : Police Officers though under statutory obligation to investigate matter on registration of case, such authority to investigate having been derived from Criminal Procedure Code, Police Act and rules raadc thereunder, Police Officials not to act capriciously or whimsically-— Hel4 Police Officials being as much bound by law on any other person, their actions not warranted by Saw to be (competently) declared as without lawful! authority. [P. 25 Cii) Criminal Procedare Code (V of 1898)-

Ss. 154 to 176—See : Provisional Constitution Order (CMLA's 1 of 1981)— Art. 9. (iii) Police Aet (V of 1861)— - — S, 23— See : Provisional Constitution Order CMLA's I of 1981)— Art. 9. (h ) Punjab Police Rales, 1934— — — -R. 252— See: Provisional Constitution Order (CMLA's 1 of 1981)—- Art, 9, Mr. Aiif Saeed Kbaa Khosa, Advocate for Petitioner. Date of hearing : 9-4-1984, ORDER This constitutional petition under Article 9 of the Provisional Consti­ tution Order, 1981 has been moved by Nadeem Manzar Malik petitioner for issuing a direction to the police to act strictly within bounds of law and oof to transgress the limits of their authority. 3. The facts necessary for the disposal of this petition are that Badiuz Zamat) respondent got a case registered under section 1 1 of the Offence of Zina (Enforcement of Hudood) Ordinances 1979 against Clement John aad Malik Asbfaq brother of the petitioner for the abduction of his daughter Mst. Zanobia. It is alleged that after the registration of the said case the police had been raiding the house of the petitioner and his relatives for the recovery of Mst, Zanobia and for effecting the arrest of Malik Asbfaq Manzar and caused harassment and humiliation to the petitioner's family m different ways, 3 - Masood Ahmad Inspector, Sahiwai has denied the allegations and states that the car belonging so th petitioner's mother was taken into possession by the police because the same was found to have been used during the commission of the offence and the matter regarding its Superdarl is sub jsidice in the Court of City Magistrate, SahiwaL He has, however, admitted thai the house of the relatives of Malik Ashfaq Manzar wa§ raided for his arrest and recovery of the abductee, According to him the object of moving this petition is to overawe the police so that they may not effectively investigate the ease, 4, No doubt after the registratioa of the case, the police ss under a. 'tatutory obligation to investigate the matter but they cannot act capneiosly or whimsically.. They are as much boand fey Saw as any other person nd if their acsioas are not warranted by law they can be declared as a. without iaftj! authority. They derive their authority to investigate from •toe Crimi.'a! Procedure Code aad the Police Act and Rules made therewo4«r. They are required to follow Rale 25,2 of ihe Police Ruie$ 9 1934 which provide t "no avoidable trouble shall toe givea to soy persor from whom enquiries are to be made and no person shall be unnecessarily detained and that it is the duty of Investigation Officer to find out the truth of the matter under investigation, his object shall be discover the actual fact of the case and to arrest the real offender or offenders and shall not commit himself prematurely to any view of the facts for or against any person." Masood Ahmad Inspector, C. I. A. Staff, SahiwaS is directed to pro ceed strictly in accordance with law and not to cause any harassment or humiliation to the family of the petitioner particular their female members This order shall not, however, prevent the police from proceeding with the investigation and making efforts for the recovery of Mst, Zanobia in accordance with law. The petition stands disposed of accordingly, (TQM) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Quetta ) 259 [DB] Present : ABDUL QADEER CHAUDHARY & MUFTAKHIRUDDIN, JJ Agha MUHAMMAD—Petitioner versus SUPERINTENDENT OF POLICE; S1B1 and 2 Others-Respondents Const. Petition No. 97/83, decided on 28«1M9<S3. (•) Customs Act (IV of 1969)— —-S. 156 (89)—Smuggled goods—Possession of—Offence ot—trnpo sition of civil penalties—Effect of—Held : Imposition of civil penal« ties such as confiscation or seizure of goods or imposition of penaltax by administrative agencies not to absolve transgressor for liability to criminal prosecution Held further : Proceeding for adjudication of confiscation and penalties being taken by different officers in hier­ archy of Custom Department, imposition of civil penalties not to amount to conviction and sentence under criminal law in any sense [P. 263] A <ii) Customs Act (IV »f 1969)— ——S. 156 (89)—Goods seized—Disposal of—Custom authorities— Proceedings before—Held : Disposal of seized goods having bceo left entirely in jurisdiction of Custom Authorities and proceedings taken foi confiscation ot goods being more in nature of departmental pro­ ceedings in condemnation of goods for purpose of revenue, such pro­ ceedings to be regarded as proceedings of civil nature despite their penal character, [P. 263] B (ill) Customs Act (IV of 1969)--

S, 156 (89)—Custom authorities—Confiscation of goods by—Held; Custom authorities being no judicial tribunal in strict sense of tarn, their verdict of eounscatioc of goods not to be regarded any punish­ment—Held further : Proceedings for criminal prosecution, en other being judicial proceedings for determination of guilt ejfperioi? concerned Jor commission of alleged offence and entailing punishment for same, both (such) proceedings through independent of each other not to be deemed to be mutually exclusive. | P. 263] C PLD J969 SC 446 & !%9 SCMR 208 re/,, lit) Prevfojouiii Constitution Order (CMLA's I of 1981)- .... ——Art. 9—Writ jurisdiction—Exercise of—Held : Jurisdiction confer­ red ob High Court by Art. 9 being discretionary ia nature and de­ signed to enforce law of land, order calculated to defeat ends of justice to be foreign to such beneficial jurisdiction, fP. 264'j /> I?) Writ Jurisdiction— ——Exercise of— Set : ProvsMouui CuasUluhon Order (CMLAV i of )-—Art, 9, Mr.. Sohil Muzafer, Advocate s'or Petitioner. Mr. Mohammad Hafiq s Advocate for Respondent No, I.. -Ve/«ti for other respondents. Date of hearing 19-10-198J. JUDGMENT Maftkhiruddin, J. —The petitioner Agha Mohammad soo of Abdu! Qayyum of Maizan Market, Qustta has challenged the search of his Trucks Nps. QAA 941? and QAB 2942 by Dera Bugti Police or 27-2-1982 and seizure of 98 boras of Betei Nuts and 41 boras of Pisham belonging to him which were being brought in those trucks to Quetta . it is mentioned in the petition that a chalian has been filed in the Court of Special Judge Customs at Sibi and the Special Judge had released the trucks on surety to the owners but the goods found in trucks have not been restored to him so far. It is further alleged that the custom authorities having not initiated so far any proceedings for the confiscation of the goods a fresh adjudication would be illegal and nuility m the eyes of law. It is prayed that it should be declared that the search as carried out was illegal and a!S proceedings which may follow would be nullity in law and the goods be restored to him. 2. We required the Superintendent of Police, Sibi (respondent No. 1) to furnish the parawise comments and the Superintendent of Police has ex­plained that on 27-2-1981 two trucks bearing registration number as men­ tioned above were stopped by the Police and legal authority for carriage of goods having not been furnished by the petitioner, he was arrested alongwith the Truck Drivers and chalSan has been submitted before the Special Judge Customs Sibi and since the goods claimed by the petitioner are the case property in the case before the Special Judge, the respondent No. 1 is not in a position to do anything regarding the restora­ tion of the goods to the petitioner or any other authority without the order of the learned Special Judge Customs. A letter addressed by the Superin­ tendent of Police, Sibi to H. Quarters Assistant Collector (Preventive) Central Excise and Land Customs dated 14-6-1983 on the subject has aisi> been placed on record and Ac same is reproduced : — "From ;-~The Superintendent oi Police Sibi To — H. Quarters Assistant Collector (Prevj. Central Excise and Land Customs, Quetta . Memorandum No, 869-71/P. 1983. B. Dated Sihi, the 14th June, SUBJECT :~SEIZURE CASE IN RESPECT OF AGHA MUHAMMAD S/O ABDUL QYUM, 98 BGS OF BETLNUTS AND 41 BAGS PISHIMS CONTAINEDIN TRUK.S NO. QAB-2942 AND QAA-9471 BY DERA BUGTI POLICE. Please refer to your letter No, V8 (Misc.) /83/2959-61, dated 3-5-1983 on the subject cited above, The case rs pending trial before the Honourable Court of Session Judge/Special Judge Customs. Sibi Division, Sibi, The District Attorney/Public Prosecutor Sibi has informed vide his letter No, 1.41/PP. dated J9-5-1983 that- (i) Show Cause Notice is to be issued to accused persons U/S. 171 of Customs Act 1969. (ii) The ease property be handed over to Customs Authority. The case property will be asked from Customs Authorities, when needed to be exhibited in the Court as it has not been yet exhibited. mi) The trucks have been released on the orders of Honourable Special Judge Customs Sibi on the Spurdigi nama. As suggested by Public Prosecutor/District Attorney Sibi to hand over the seized goods to Customs Authorities it is pointed out that the seized goods are lying at Police Station Dera Bugti aad two trucks are required to shift these goods to Quetta. It is therefore, requested that necessary transport be arranged to shift the seized goods from Dera Bugti to Quetta and the goods be taken in custody accordingly through Public Prosecutor/Special Judge Customs Sibi as the case is still pending trial." Superintendent of Police, Sibi. lospite of this fepiy the learned counsel for the petitioner has laid stress on his contention that so far no proceedings have been initiated by the Customs Authorities for the confiscation of the goods as oo notice as required under Section 168 and 171 of the Customs Act, 1969 has been issued and since the provisions ol Section 168 have not been complied with as no reason for arrest or seizure of the goods have been given, the seizure is illegal and on that count also the trial before the Special Judge is not warranted in law. We are not impressed by this contention. The argu­ ment assumes that the provisions of Section 156 (89) under which the peti­ tioner is being prosecuted provides mutually exclusive proceedings which can not overlap. The petitioner is being proceeded in the Court of the Special Judge, Sibi for being found in possession of or carrying the smuggled goods as laid cl wn in Section 156 (89) of the Customs Act, 1969. When we examine t- - Customs Act, 1969 we notice that against certain items the liability of goods to confiscation alone is mentioned as penalty. without any mention of a trial by a Special Judge, similarly there are cer­ tain items which are punishable with penalty of fine only, without any mention of trial by the Judge and there are still items which when make mention of the Special Judga they mention "fine" instead of penalty of fine, as the only or one of the punishment prescribed therefor. To explain further we may reproduce the provisions of Section 156, as its interpretation i? involved in the instant case. Section 156 reads as follows : — "156 Punisfonent for Offences:—(I) Whoever commits any offence described in Column 1 of the table below shall, in addition to and not in derogation of any punishment to which he may be liable, under any other law, be liable to punishment mentioned against that offence in column 1 thereof : Offence Penalties Section of this Act to which offence has refer­ ence. 1 89. If any person with- Such goods shall be liable General out lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way oncerned in carrying removing, de­ positing harbouring, keeping or concealing, or in any manner deal­ ing with smuggled goods. or any goods with res­ pect to which there may be reasonable suspicion that they are smuggled goods; Provided that if the smuggled goods be gold bullion or silver bullion the onus of proving the plea that such bullion was obtained by process­ ing or other means emp­ loyed iu Pakistan and not by smuggling shall be upon the person tak« ing that plea.'' The provision of law containing penalty clause is unambiguous and it in nnmtakeable terms shows that its comprise of two parts, one relates to confiscation of the offending goods and penalty not exceeding ten time the value of the goods and the other to the trial of the offender by a Special Judge and the liability to imprisonment and fine of the person concerned in the commission of the offence in respect of those goods. It is also apparent that it relates to certain prohibition with regard to the importation or exportation of goods and involves the civil proceedings of confiscation, civil penality for forfeiture to be levied by the officers of the Customs and aiso the infringement involving criminal proceedings. It has been held that the imposition of civil liability such as confiscation or seizure or penal tax by the administrative agencies will not absolve the transgressor for liability to criminal prosecution, if he is liable upon those identical facts, because imposition of civil penalties does not amount to conviction and sentence under the criminal law in any sense Proceedings for adjudication of confiscation and penalties are taken by different officers in the hierarchy of the Customs Department. The inten­ tion of the legislature is thus clear that the disposal of the goods seized is left entirely in the jurisdiction of Custom authorities and the proceed ings taken by the Customs Authorities for the confiscation of the goods are more in the nature of Departmental proceedings in condemnation of the goods for the purpose of revenue and are regarded as proceedings of civil nature dispite their ..penal character. The custom authorities, as pointed out by the August Supreme Court in Adam vs. Collector of Customs (PLD 1969 SC 446) are not a judicial tribunal ia the strict sense ot the term nor their verdict of confiscation of the goods be regarded as punishment, on the other hand, the proceedings for the criminal prosecu­ tion of a person who commits an offence under Act in relation to those goods fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for the commission jf the alleged offence and entailing a punishment for the same. Both arc jBdependent of the other. They can not be deemed to be mutually exclusive. It has been further clarified by the Supreme Court in Mosam Khan and another vs. The State (1969 SCMR 208) that the prosecuuoa is not dependant on prior adjudication of liability 10 confiscation

f goods b> Custom authorities. Their Lordships of the Supreme Court '. v ere dealing with a case where the Custom authorities had chosen not to confiscate the goods, (As is done in the instant case so far) and it as maintained on behalf of the petitioner that unless the officers oi custom adjudge confiscation of goods a Magistrate can aot take cognizance of the offence. The arguments was repelled and it was observed that the word :f and" after the caluse "such goods shall be liable to confiscation" must be read in di sjunctive sence and not conjunctive sense. It was held that the prosecution under item 81 of the Schedule to Section 167 (this provision is almost similar io provision of Section 136 (89» of the Act 1969), is not dependant on prior adjudication of liability of confiscation of goods by officers of the Custom, and the prayer for quashment o( proceedings before Court were declined. It was also held in Khursbidl Mir and 3 others vs. State (1911 p. Cr. L. J, 430) that adjudication of Custom authorities have no bearing on criminal trial Though Ehere can be no difference of opinion about the law enunciated by the Supreme Court Ihe legislature has set the controversy at rest by the insertion oi" Section 179-A in the Customs Act 1969 by Act XII of 19?? Th.e newh added Section 179-A reads as follows: — '"179-A. Orders of adjudication to be mbjgct io decision of Special Judge, «nc, —Noiwithstaading anything contained in Section- 179, Section 181 or Section 182 or in Chapter XIX, in cases where the owners or person-incharge of goods or thing seized are to be, or are being, prosecuted before a Special Judge, as order of adjudication made uader section 179 or under Chapter XIX shall be subject to the decision of the Special Judge and of the Special Appellate Court in appeal or revision, if any." This is in our opinion a complete answer to the contention of the learned counsel for writ petitioner and the contention is opposed to the scheme of the provisions itself. We are, therefore, of the considered view that the prosecution _of the petitioner before the Special Judge Sibi can not be taken exception of. The jurisdiction conferred by, Artils 9 of the •Provisional Constitution. Order, i981 on the High Court is discretionary Jin nature and designed to enforce the Saw of the land. A fortiori on jorder calculated to defeat the end of justice is foreign to this beneficial (jurisdiction and as such should never be passed, For the above reasons, we do not find any justification for the exercise of our constitutional jurisdiction in this case. The petition, therefore merits no consideration and is dismissed with no order as to cost. (TQM) Petition dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C, 264 ( Karachi ) 264 [Sakknr Bench] Present : MUNAWAR ALI KHAN, J Afst. ALLAH JIWAI— Applicant versus THE STATE-Respondent Criminal Bail Application No. 336 of 1983, decided on 23-10-1983. (i) Criminal Procedure Code (V of 1898) ...... -- Ss. 497 & 498 read with Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) -Ss, 10 & 16— Bail— Application for— Order on— Statement before police— Relevancy of— Held : Police statement of accused being not admissible in evidence, same not to be looked into even for deciding bait application, [P. 266]A (ii) Criminal Procedure Code (V of 1898}— — _Ss. 497 & 498— Bail-Grant of—Delay—Effect of— F.I. R. lodged after four months of delay— Even nikah of applicant with both complainant and co-accused remaining disputed — Held : In absence of satisfactory explanation, delay in lodging F.I.R. not to be easily overlooked for considering bail appliction, [P. 266]5 (Hi) Criminal Procedure Code (V of 1898)— -- S. 497 (1) proviso (!)— Women— Grant of bail to— Heidi : Bail though not to be claimed as of right under proviso to sub-section (1) of S, 497, same invariably to foe granted to woman accused unless special circumstances exist oi> record warranting refusal of bail to her. fP. 266JC Sheikh Aya Advocate for Applicant, A.A.G. for State. Oate^of hearing : 23-10-1983. ORDER The applicant Mst. Allah Jiwai who is facing trial u ; Ss. 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (hereinafter referred as the Ordinance) has prayed for her release on bail. 2 The prosecution case against the said applicant is shut the Complainant Bashir Ahmad who is married with her, being Mureecf of the Dargafi of Bherchundi Sharif took her with other family members for usual visit to the said Dargah about 4 months prior to lodging of the F. I. R. After about 2-3 months stay there the complainant returned to his village leaving the applicant at the Dargah. After about ,i week when he went to fetch her, she was not available there. He was. however informed that she had gone away with Karamullah Pitafi a right hand man of the Pir of Bherchuudi Sharif. He also learnt that she had developed illicit relations with the said Karamuliah PitafL Having failed to trace out Karamullah, the complainant returned home and informed his witnesses. Once again he accompanied by his witnesses wen! to the Dargah and apprised Pir Abdul Khalique about the elopment of his wife with Karamuliah Pifaii. The said Pir advised him to refrain from lodging report with the police, promising that he would use his influence to have his wife restored. Again on 10-7-1983 the complainant approached the above Pir for return of his wife, who however told him that since Karamuliah had taken her away to some tin-known place, he was tree to do whatever he liked. Accordingly he lodged the F. L R. on the same day, A few days later the applicant was arrested by police. She first moved bail application before the Sessions Judge but after her application as rejected by the said Judge, «hc has preferred the present application. Mr, Shaikh Aya- who represents the applicant ha-, contended that or 15-6-1983 her father Ahmed in consultation with the Pir of Bherchundi Sharif got the applicant married with Karamuliah Pitafi and after the said marriage she had been living with her husband. He has further stated that in the second week of March 1983 the father or' the applicant alongwith some others came into the house of Karamullah m his absence and forcibily took away the applicant from the house aiongwith her clothes and ornaments and wrongfully confined her into the house of complainant with a view to pressurise Karamullah to pay off the loan due against him. The learned advocate further stated that Karamullah filed direct complaint in the Court of Civil Judge aad F C. M, Mirpur MatheJo whereupon thecourt issued search warrant in execution op which the applicant was secured by police from the complainant's house. \s she was legaHywedded wife of Karamuilalt Pitafi she expressed her desire to go with him. Consequently •she was allowed by the Court to go with him. The learned counsel has disputed the allegation that the applicant Is wife ..<f the complainant Bashir Ahmad. In this connection bt has relied upon the certificate of the Chairman Union Council which according to him shows that the alleged nikah of the complainant with the applicant is not catered sb rhe nikah register maintained by Moulvi Dm Mohammad of their village. On perosai of the impugned order whereby the learned Sessions Judge turned down the applicant's prayer for bail, it appears that the learned Judge relying on the police statement of the applicant has taken the view that since bet marriage with the complainant is admitted by her, no material has been placed on record to show that the said marriage has been dissolved. The learned Judge has further observed that so far the applicant's alleged marriage with Karamullah is concerned, there is no legal proof as no nikahnama has bean produced. The learned Judge has therefore expressed the view that in the above circumstances if the applicant is living with Karamuliah, they are deemed to be living in adultery, am afraid, 1 cannot endorse the views expressed by the learned Ses­ sions Judge. First of all the police statement of the applicant which has Ibeen made the basis of the learned Sessions Judge's findings is not admissi­ ble in evidence and as such cannot be looked into even for deciding the bail (application. With its exclusion from consideration, the so-called admission

f the applicant about her marriage with the complainant would disappear, ob the other hand she has vehemently denied the factum of the marriage with the complainant. It is alleged on her behalf that nikahnama produced by the complainant is a forged document To re-mforce this argument re­ liance has been placed on the certificate of the Chairman Union Council showing that there is no entry of the complainant's nikah with the appli­ cant in the nikah register maintained by the concerned nikah registrar. Additionally the nikahnama of the applicant's marriage with Karamullah Pitafi has been placed on record. id view of above material h is apparent that applicant's nikah with both complainant and Karamullah is disputed. In such situation if no satisfactory explamatson has been furnished for the delay in lodging the FIR in delay could not be easily over looked for considering the bail application, Even if the factual assessment made by the learned Sessions Judge with regard to the applicant's two nikahs were accepted, his views that the admis­ sion of the applicant that she and ICaramuiSah are living together as hus­ band and wife would be considered as an admission of adultery are clearly erroneous. It may be observed that for the purpose of proving the offence of Zina, as is required by the section 7 of the Ordinance should be clear and straight forward admission on the part of the accused that either they have committed the adultery or are living in adultery. In the instant case the applicant's claim that she is the legally wadded wife of Kararnuliah and they are living as husband and wife cannot be treated as admission on her part of adultery, Until the case is finally decided and the court has come to definite conclusion on the question of their marriage, it would be pre­ mature to draw any adverse inference about the applicant and co-accused Karamullah living together, Apart from above it cannot be over looked that the applicant is a wensan atsd her case For the purpose of bail is covered by first proviso to sub'sectio" (1) of section 497 Cr. P. C. Of course on the strength of the £ said provi'o she cannot be claim bail as a matter of right. However by lenacting the said proviso the intention of legislature appears to be that bail should invariably be granted to a woman accused unless any special circum­ stances exiss: o» record warranting refusal of bail to her, The learned obtaining certain amount from Zakat Fund by impersonating himself as Afghan refugee—Such allegation however not supported by any evidence on record—Even ipsi (Jixii of P. W. to involve petitioner in case standing surrounded by adverse material placed by prosecution on record—Held ; Petitioner not to be held to have impersonated himself as Afghan refugee and obtained amount fraudulently on basis of material placed by prosecution on record—Held further : It being too much and very unfair to put petitioner to rigovs> of trial, proceedings against him to he quashed in circumstances. (iv) hlainu La & Jurisprudence ... -—^akat money—Disbursement of—Held ; Zakat money being sacred trust money of Allah, same not to be spent lavishly and ought to be disbursed in Muslim Society to needy and deserving persons. U. 2?!]f Mr= K, i», Satoir, Advocate for Petitioner.. Mr. Amir 7/ada Khan. Advocate General ukltv.-ipond.entr>. Date of hearing . 3-1-1984. JtlWJIVUCNT The pctittOQci" tsa-> occn thallansd to stand imi in the Court of Sub Divisional Magistrate Peshawar on the charge under sections 4i9,-420. P. P. C. The F. I, R. against hun was lodged lu P. W Jehangir Khan, Secretary to Commissioner. Afghan Refugees, Peshawar, lie aiieged therein that ob" 13-1-1983 and IS-i-1983 she petitioner hud visited the office of Commissioner, He was a poet and was reciting good verges on Jehad. He told him that he lost one arm in Jehad, He look him to be ua Afghan refugee and on the direction of Commissioner, he paid to the petitioner on each occasion Rs. 500 out of Zakat Fund. Later on, he came to know that he was not Afghan refugee and the above amount was taken by him fraudulently- The petitioner teeU aggrieved alleging thai he has been falsely involved til the case and in this behalf he has attributed wda fides to P, W. Jehangir Khan. He has stated that he is a Pushto poet and had visited the office of Commissioner with the intention to get a foreword from the Commissioner on his book, of verses entitled ' ; Lass and Griwan", He farther stated that iu his application annexure 'A' he made it clear cd the Commissioner that he was coming to him for the purpose of interview only and not for the purpose of getting any amount from him and that the amount was given to him on the first occasion against his option aud discretion. His plea is that P, W. Jehangir Khan was not reconciled with his disclosing to the Commissioner in his'said application the amount of Rs. 500 offered to him. The petitioner has alleged that the scheme of P. W. Jehangir Khati was that he would be given Rs. SOO per visa but be would show more than that amount thereafter m order to misappropriate the money but as he disclosed the fact of offering the amount to the Commissioner in hi? application, it offended P, W. Jehangir Khan and consequently he involved him falsely in the present case, The petitioner has, therefore,' moved this Court in'the present application under section 561-A, Cr, P. C, with a prayer that the proceedings against hun pending trial in the Court of Magistrate rnav be quashed, n^ bcina abuse of the process of the Court, heard the learned counsel tor the parties. The question for consideration in this case is whether the petitioner has received the amount fraudulently introducing himself as Afghan refugee or that the amount was offered to him under the impression given to him that the same was offered to him as the pn« of a poet Now ! ! , W, Jehangir Khan is the solitary witness who has spoken against the petitioner P. W. Naik Muhammad was also examined under section 161. Cr. P. C. At the material time, he was an employee in the Reception Room of the office of Commissioner, Afghan Refugees, Peshawar , He stated that he was on duty in the Reception Room on I-2-1983 when the petitioner came. The petitioner said that he was a poet and wanted to see the Commissioner in connection with his book of verses. He showed his residence at Khar, Baiaur Agency. The witness, therefore, entered petitioner's particulars in the register exclusively meant for Pakistani national and thereafter he was escorted to the office of Com­ missioner under security guard. Thereafter the petitioner had come many it time. His particulars to the above effect were also registered in the said register by his counterpart, namely Abdul Karim., P. W. Naik Muhammad further stated that the petitioner never introduced himself an Afghan refugee but always toSd him that his name was Abdul Rashid and a resident of Khar Bajur Agency and that he was a poet. He offered bis book to the people in the premises of the office of Commissioner, He also told him that he was given Rs, 500 by the Commissioner, U is- clear from the above statement of P. W. Naik Muhammad that be does not support the allegation of P. W. Jehangir Khan. He stated that the petitioner had never introduced himself as Afghan refugee. This wit­ ness was an employee in the office of Commissioner, therefore, he cannot be said to be in any way connected with the petitioner to doubt his testi­ mony the moreso as the witness entered the particulars of the petitioner as Pakistani national in the relevant register at the instance of the petitioner, Similar particulars of the petitioner were also entered in the said register by his counter-part Abdul Karim. The fact that the petitioner had shown himself a Pakistani national is also borne out from the two receipts in lieu whereof the petitioner was offered the amount in question by P. W.. .lehangir Khan. In these two receipts the petitioner had shown himself a resident of Khan Bajaur Agency under his signatures. P. W. Jehangir Khan has not made mention of these receipts in the F. I. R., therefore, an adverse inference can be drawn hi this behalf that he wanted to suppress the receipts in question so that it should not be known that the petitioner had ever introduced himself as Pakistani national, but as obviously on the demand of the I. O,. he was to produce some rnate-ial in support of his allegation that the petitioner had secured the amount fraudulently, forsutsately for the petitioner there was no way out for P. W. Jehangir Khan but to produce before the I. O. the said receipts which-completely destroyed the prosecution case, as in the said receipts the petitioner had not described himself a Muhajir but a Pakistani national resident of Khar in the Bajaur Agency, P. W, Jehangir Khan also did not make mention in his F. 1. R. of the application (Annexure 'A') addressed by the petitioner to the Commissioner so which, as stated earlier, he in plain term? submitted that he was not a greedy man coming with the object uf getting money. The reason that p, W Jehan ^ir Khan had suppressed in make mention of tlw application in the 1. I, R. is not far to seek. A look at this application will show that its contents were ciearly not favourable to the allegations of P. W, Jehangir Khan levelled by him against the petitioner. I wiil examine and discuss the application iAnnexure 'A') at an appropriate stage in order to show that the petitioner had done nothing to get the amount fraudulenty, as alleged by P W. Jehangir. Khan and as this application was to contradict and belie him, he suppressed to make mention thereof in the F. I. R, just as for that reason he suppressed to make mention of the two receipts in the F. I. R. 1 observe that even if it is assumed that P. W. Jehangir Khan himself voluntarily produced the two receipts as well as the application before I. O. during investigation, yet as these three documents speak against him, he cannot place reliance upon them in support of his stand against the petitioner. The two receipts in question also do not bear the signatures/initials of the Commissioner which will show that P. W. Jehangir Khan had not in­ formed the Commissioner that the amount was paid to the petitioner. It is conceded that such act on the part of the witness was highly objection­ able in an official accounts matter. The Commissioner was also not examined as to what the petitioner had told him in the interview. In the circumstances of the case, the Commissioner was a material and crucial jwitness. I observe that the law has not exempted a high ranking officer, he is a material and crucial witness in a cri.ninal transaction and in the jinterest of justice his evidence is decisive for a just and fair verdict of the jCourt. I have already noted that the case of P. W. Jehangir Khan is that on the direction of the Commissioner he offered the amount to the peti­ tioner and the petitioner had also met the Commissioner. Yet strangely the Commissioner was not examined, therefore, an objection can be raised that the Commissioner was not examined, as he was not disposed to sup­ port the allegations of P. W. Jehangir Khan against the petitioner. Now I turn to deal with the application (Annexure 'A') addressed to the Commissioner, Afghan Refugee, Peshawar . It contains few verses of the petitioner in the opening and thereafter he has explained the object of his visit This application is in Pashto and its English rendering would read as under : 'To Sir, The Commissioner Sahib, I thought you. would be supporting the righteous, but you treated me too a man in the class of greedy men. The hopes of oppressed people will be satisfied, should you look as a benevolent person at the country. O Abdullah Sahib, Rashid came to you out of compulsion, but the world looked upon him as beggar. Application to the Hon'ble Commissioner Sahib for interview. Assalam-u-Alaikum. When i came the other day on Uth for the purpose of interview, you instead of granting me interview kindly offered me the sura of Rs, 500 through Secretary Sahih. Dear e'der, I want inter­ view with you. If you give me two minutes time for interview, it will be your great kindne^. Kindly excuse me, Your servant, Sd - Abdur Rasbid Poet". It will be seen that this application is as simple in meaning and under ^landing that if put to a layman of average senses, he will also straight­ away say that the amount was offered to the petitioner against his disposi­ tion, mucbless that he had approached in this behalf. The only conclusion that can be drawn in the circumstances of the case would be that the peti­ tioner was given the impression that as he was a poet, the amount was offered to him as prize for his poeticalwork and labour. I observe thatl the tradition in the history still exists without any change that poets arelfl prized, J From the above discussion, it is clear that the barren and more ipxi liixit of P. W, Jehangir Khan to involve the petitioner in this case stands in isolation surrounded by the other adverse material placed by the pro­ secution on record, namely, the statement of P. W. Naik Muharamad, other documentary evidence as well as circumstantial evidence. No material on C the record supports the allegations, of P. W, Jehangir Khan that the peti­tioner had introduced himself as Afghan refugee and had fraudulently obtained the amount. Rather, all other material fully supports the peti­ tioner that he had never introduced himself an Afghan refugee and obtained the amount fraudulently I regret to observe that on coming on record the two receipt ia question as well as the application (Annexure 'A'j in the handwriting of the petitioner coupled with the police statement of P. W. Naik Muhammad all of which run counter to the allegation of P. W, Jebangir Khan, yet the petitioner was challaned in Court to stand trial on the so-called charges. 1, therefore, hold that in the circumstances of the ease, it will be loc much and very unfair to put the petitioner to the rigors of trial in the present case. On the basis of the material placed by the prosecution onj' record, the petitioner cannot be held to have impersonated himself an[ Afghan refugee and obtained the amount fraudulently. The amount in the present case was offered to the petitioner from Zakat Fund, I observe! that Zakat money is a sacred trust money of Allah and must not be spentlE lavishly. It ought to be disbursed in Muslim society to tbe needy persons} who deserve and stand for it The record is clear on the point that the petitioner was kept unaware that the amount was offered to him from the Zakat Fund. I ain re-inforced in this behalf by reference to the application of the petitioner (Annexure 'A') placed by the prosecution on record in which, as I have already pointed out, the petitioner submitted to the Com­ missioner that he was not coming with the object to secure monetary grant from him and the Commissioner might render such Sakftawat to the oppressed. The amount out of Zakat Fund should, therefore, have been withheld from the petitioner at his own initiation and behest. As a result, I accept this application and quash the proceedings aguinstlthe petitioner io the case. (TQM) Proceedings quashed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 272 (DB) Present : ABDUL SHAKURUL SALAM & MUHAMMAD ASLAM MIAN, JJ MUSHTAQ AHMAD—Appellant versus STATION 1 HOUSE OFFICER, POLICE STATION MUNAWAN, Lahore —Respondent l.C.A. N->. 76/84, decided on 21-4-1984. (i) Criminal Procedure Code (V of 1898) —

S. 154—First Information Report — Registration of —Case in respect of occurrence already registered— -Held : No second case giv­ ing counter version by accused persons to be registered. [P, 272]A. (<i) Provisional Constitution Order (C.M.L.A's 1 of 1981) —

Art. 9 read with Law Reforms Ordinance (XII of 1972)—S. 3 & Criminal Procedure Code (V of 1898) —S. !54—First Information Report—Registration of—Direction regarding—FIR already regis­ tered in respect of occurrence— Held : No direction to be issued for registration of case giving counter versions of other side, [P 2731B (Hi) Criminal Procedure Code (V of 1898)

S. \54~See : Provisional Constitution Order (CMLA's 1 of 1981- Art. 9 (iv) Law Reforms Ordinance (Xfi of 1972) —

S. I—See— Provisional Constitution Order (CMLA's 1 of 1981)— Art. 9. Ch. Muhammad Ilyas komal Advocate for Appellant., Date of hearing : 21-4-1984 ORDbK The appellant wanted to give a conn ter-version in respect of an occurrence in which a case under Section 302/307 P. P, C. was registered against the appellant party. The counter- version was that the other side was aggressor. For this purpose he filed Writ Petition No. 1164/84 vvhich has been dismissed by the learned Single Judge. Hence this appeal. 2 Learned counsel for the appellant has, contended that since the appellant was giving counter-version of the occurrence), the SHO was duty bound under Section 154 Cr. PC. In register the case and for his failure a direction should be issued, 3. When a case has been registered in respect of an occurrence, no 1 second case can be registered giving counter-version thereof by the acused persons. If this were so in eaca criminal case,, there will be one FIR lodged by the complainant party and another by the accused because it is not likely that any of the accused will not have a counter-version of the allegations made against him ia the FIR, That would mean that.for each crime two FIRs should be registered. This, of course, is rk>( the law. Learned counsel for the appellaat referred to Muhammad Ibrahim vs. S H.O. Police Station, Mansebra and another (PLD 1983 Peshawar 229). A perusal of the judgment would show that such a direction was declined and the writ petition was dismissed. It is by now clearly established law that no direction can be issued for registration of a case when a FIR has already been registered in respect of the occurrence for giving counterversion of the other side. The appellant has otherwise alternate remedy by way of filing a complaint. 4. In view of that has been stated above, there is no merit in this appeal and the same is accordingly dismissed -in limine. (TQM) Appeal dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 273 Present : RUSTAM S. SIDHWA, J MAHMOOD-UL HASSAN—Appellant versus THE STATE—Respondent Criminal Appeal No. 886 of 1980, decided on 31-3-1984. (i) Pakistan Criminal Law Amendment Act (XL of 1958)—

S. 3 (2) (6)'— Special Judge — Qualifications of—Removal from service—Disqualification of—Reinstatement — Effect of— Proposed officer reinstated after his removal or dismissal from service—Held : Such officer to continue to suffer disqualification to hold office of Special Judge. [P. 276]# (ii) Pakistan Criminal Law Amendment Act (XL of 1958)—

S. 3 (2) (b) —Special Judge — Qualifications of—Dismissal from service — Effect of — Words "at any time"—Meaning of—Held : Words "at any time" prefixed to words "been removed or dismissed from such service" to refer to factum of removal or dismissal as event occurring at point of time, irrespective of its effect. [P. 276]A (Hi) Pakistan Criminal Law Amendment Act (XL of 1958)—

S. 3 (2) (b)— Special Judge-Qualification of—"Removal" from service — Meaning of — Held : Word "removal" having been used in generic sense, same to cover all types of cases of severance of service effected at instance of Government where there be cause disclosed or not outwardly disclosed because of law or rules applicable or by way of public policy or as favour to public^servant Held further: Removal not to be equated with retrenchoment where severance be effected because of department or cadre wound up or number of posts being abolished or where severance be effected of person on probation or holding temporary appoint­ ment or engaged under contract. [P. 277JC (if) Pakistan Criminal Law Amendment Act (XL of 1958)— -—S. 3 (2) (b)-~ Special Judge — Qualifications of— Pre-mature re­ tirement—Effect of—HeW : Pre-mature retirement of official being covered by word "removal" appearing in clause (6) of subsec­ tion (2) of S. 3 s persons compulsorily retired by way of major penalty under relevant Civil Servants (Efficiency and Discipline) Rulefc also to be covered by word "removed". [P. 278]J9 (?) Pakistan Criminal Law Amendment Act (XL of 1958)—

S, 3 (2)(b) read with Removal from Service (Special Provisions) Regulation M.L.R. 114), 1972— Para . 3 (I) (a) & Pakistan Penal Code(XLV of 1^60)—S, 163—Special Judge—Qualification of— Removal from service and subsequent reinstatement Effect of— Special Judge previously pre-maturely retired for under para. 3 of M L R. 114 of 1972 — Held : Such pre-mature retirement to amount to removal from service effected at instance of Government and dispiete subsequent reinstatement, event of pre-mature retirement to disentitled such officer to be appointed as Special Judge there after—Htld farther : Special Judge in case being incompetent to hold office, trial of appellants case by him to be without jurisdiction. [P. 278]£ PU 1982 Cr. C. ( Karachi ) 468 ref. (f i) Removal from Service (Special Provisions) Regulation (M.L.R. 114), 1972-

Para 3 (1) (a)— See : Pakistan Criminal Amendment Act (XL of 1958)—S. 3 (2) (b). (vii) Pakistan Penal Code (XLV of I860)— -—S. 163—See : Pakistan Criminal Law Amendment Act (XL of 1958)-S. 3 (2) (6). Ch. Muhammad Anwar Bhinder, Advocate for Appellant. Mr. Sbaukat AH Mehr, Advocate for Stale, Dates of hearing : 12 & 20-3-1984. JUDGMENT This is an appeal preferred by Mahmoodul Hasasn against the judgment of Mr. M. Anwar Shariq, Senior Special Judge, Anti Corruption, Punjab, Lahore, convicting him under section 163 P.P.C. and sentencing him to one year's rigorous imprisonment with a fine of Rs. 2000/- or in default of payment of fine to undergo further rigorous imprisonment for six months. 2. A criminal revision (Cr. R. 140 of 1981) has also been filed by the State for tl.e amendment of the judgment to the extent that it directs confis­ cation of Rs. 5.COO/- in favour of State, with the prayer that the said money should be delivered back to Muhammad Yaqoob, complainant, who is eal owner. 3. Both the criminal appeal (Cr. A. 816 of 1980) and the criminal revision (Cr. R. 140 of 1981) shall be disposed of by this judgment. 4. The facts of the case and the evidence do not deserve to be dis­ cussed, as this appeal is being accepted on a legal ground. 5. It is the contention of the learned counsel for the appellant that Mr. M. Anwar Shariq, Senior Special Judge, Anti-Corruption, Punjab, who tried tha case, was not competent to do so by virtue of section j(2,(b) of Pakistan Criminal Law Amendmeut Act, 1958, as he had at one stage been removed from the Provincial Government's service uader the Removal from Service (Special Provisions) Regulation, 114 of 1972, for possessing derogatory behaviour, conduct and/or reputation, as laid down in para. 3 (1) (a) of the said Regulation, In this connection, it is submitted that the said Special Judge was compulsonly reared with effect from 13-3-1972 under the said Martial Law Regulation No. 114 by order of the President of Pakistan, as conveyed by the Cabinet Secretariat, Establish­ ment Division, Rawalpindi, by its letter No. 2/2/72-D A. dated I3ih March, 1972, to the Chief Secretary, Government of the Punjab, Lahore, and that he was reinstated thereafter by Provincial Government's Notification No. S.O. (S)-l3-33/73 dated 12-8-1973. 6. On behalf of the State, it is submitted that the disqualification referred to, regarding the Special Judge, in section 3 (2) (b) of (he Pakistan Criminal Law Amendment Act, 1958, is discretionary and not mandatory and, in any case, the disqualification arising by removal or dismissal would not apply if the incumbent is reinstated by Government after his appeal, revision or representation is accepted, for such a reinstatement would have the effect of washing off all stigmas pre­ viously attaching to him. It is submitted that where the incumbent has been removed from service, but reinstated, the disqualification ceases to have effect. It is further urged that the Special Judge was neither removed nor dismissed, but pre-maturely retired and, therefore, the disqualification provided by the words "removed" or "dismissed" is not applicable to his case and since he was reinstated, his earlier stigma, if any, alsj stood wiped off and he could hold the office of Special Judge afterwards. 7. I have given my anxious consideration to this case. Section 3 (2) of the Pakistan Criminal Law Amendment Act, XL of 1958, which deals with the qualification of Special Judges, reads as follows :— "(2) No person shall be appointed as Special Judge unless he— is, or Is qualified to be a Judge of a High Court; or is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate and has not retired from Government service or at any time been removed or dismissed from such service ; Provided that no Assistant Sessions Judge shall bs appointed as Special Judge unless he has been an Assistant Sessions Judge for not less than three years : Provided further that no District Magistrate or Additional District Magistrate shall be appointed a Special Judge unless 10. The next question that remains to be determined is whether the Special Judge's earlier pre-mature retirement can be treated as removal from service. The word "removed'' in clause (b) of subsection (2) of section 3 of the Pakistan Criminal Law Amendment Act, 1958, has been used in a general sense to cover all types of cases of severance of service, effected at the instance of the Government, where there is a cause, which has been disclosed or which has been kept sub rosa and not outwordty disclosed, purely because of the law or rules applicable in that behalf, or by way of public policy, or as a favour to the public servant, so that it may not effect his prospects of securing employment elsewhere. Removal should not be equated with retirement, where severance of service is effected because a department or cadre is being wound up or a number of posts are being abolished, or where severance is effected of a person on probation, during the period of his probation, or of a person holding a temporary appointment, on the expiry of his period of appointment, or of a person engaged under a contract, in accordance with the termination clause in bis contract. Now in the instant case it is necessary to determine for what reason the Special Judge in instance was pre-maturely retired. As disclosed in the Cabinet Secretariat, Establishment Division's Letter No. 2/2/72-D-A. dated 13-3-1972, addressed to the Chief Secretary, Punjab , the present Special Judge was pre-maturely retired by the President of Pakistan under Martial Law Regulation No, 114. Para . 3 of the said Chief Martial Law Administrator's Regulation 114 reads as fellows :•-• "(3) (1) Where in the opinion of the competent authority, a person in Government service or a person in corporation service is— (a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or (b) guilty of misconduct, or (c) inefficient or has for any reason ceased to be efficient, or (d) engaged or is reasonably suspected of being engaged in subversive activities, the competent authority may, notwithstanding anything con­ tained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall pre-maturely retire from service. The dismissal or removal from service, or reduction in rank or pre-mature retirement of a person under sub-paragraph (1) shall not absolve such person from liability to any punish­ ment to which he may be liable for an offence under any law committed by him while in service. Notwithstanding anything contained in any law or in any decision of a Court "nothing in sub-paragraph (1) shall be construed as requiring the competent authority, before making an order under that clajse in respect of any person, to give such person an opportunity to showing cause against such order," It is, therefore, apparent from the above that the earlier pre-mature re­ tirement of Mr. Muhammad Anwar Shariq was for a cause and, therefore, his pre-mature retirement is covered by the word "removed" as appearing in clause (b) of sub-section (2) of section 3 of the Pakistan Criminal Law Amendment Act, 1958. Cases of persons who are compulsonly retired by way of major penalty under the relevant Civil Servants (Efficiency & Discipline) Rules would also be covered by the word "removed" as appearing in clause (b) of sub-section (2) of section 3 of Act XL of 1958, as the same is basically pre-mature retirement by way of punishment. 11. The upshot of the above discussion is that Mr. Muhammad Anwar Shariq, Special Judge, Punjab having previously been pre­ maturely retired for a cause under para. 3 of the Removal from Service (Special Provisions) Regulation, 114 of 1972, the said pre-mature retire­ ment amounted to removal from service effected at the instance of the Government, as contemplated in section 3 (2) (b), and despite the fact that ae was reinstated later, the very event of his having been removed earlier disentitled him to be appointed as a Special Judge thereafter. The said Special Judge was, therefore, incompetent to hold the office and he had, ;herefore, no jurisdiction to try the appellant's case. 12. For the foregoing reasons, this appeal is accepted and the con­ viction and sentence of Mihmoodul Hassan, appellant, is set aside. The appellant is on bail. His bail bond shall stand discharged. The fine, if any recovered from the appellant, shall be refunded to him. 13. The criminal revision (Cr. R. 140 of 1981) is accepted, the currency notes aggregating Rupees Five Thousand (Rs. 5.000/-) passed as bribe by Muhammad Yaqoob P. W. 6 should be delivered bacK to the said witness. The direction of the Special Judge to the extent that it directs this money to be confiscated in favour of the State, is set aside. (Aq. By.) Appeal accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 278 Present: FAZL-I-MAHMOOD, J ALI AHMAD and Another—Petitioners versus THE STATE—Respondent Writ Petition No. 2735 of 1982, decided on 30-1-1984. (i) Criminal Procedure Code (V of 1898)—

S. 173—Police case—Cancellation of—Effect of—Held : Cancel­ lation of police case not to amount to discharge entailing acquittal— Held farther : Police agency to be competent to carry out fresh investigation and to put fresh challan in case of sufficient evidence forthcoming as result thereof. [P. 280]/< (ii) Criminal Procedure Code (V of 1898)— ——S. 173 read with Provisional Constitution Order (C.M.L.A.'s 1 of 1981)—Art. 9—Police case—Cancellation of—Fresh proceedings— Initiation of on same report—Order of-Challenge to—Order of cancellation of case passed by Magistrate on request of prosecu­ tion—Subsequently, another Magistrate initiating fresh proceedings on same police report—Held : Order of cancellation of case having taken legal effect, successor Magistrate to have no jurisdiction to ignore or review order of his predecessor by initiating fresh pro­ ceedings. [Pp. 280 & 28I]B (HI) Court —

Duty of—Official record—Misplacement or destruction of—Effect of—Held : It being duty of Court or relevant quarter to reconstruct file, misplacement or destruction of records not to prejudice rights of parties. [P. 281]C (i?) Provisional Constitution Order (C M.L.A.'s 1 of 1981)—

Art. 9—See : Criminal Procedure Code (V of I898)--S. 173. Mr. Muhammad Nasrullah Warraich, Advocate for Petitioner, Sh Riaz Ahmad, Advocate General with Ra&bid Aziz Add. A.G. for State. Date of hearing : 30-1-1984. JUDGMENT This writ petition has been filed by the petitioners who are accused in a case under section .-07/34 P.P.C. and whose case was chaljaned on a police report under section 173 Cr. P. C. by a learned Magistrate. The brief facts of the case are that on 13-12-1978, a case under section 3U7/34 P. P. C. was got registered against the petitioners by Muhammad Hussain complainant. The case was investigated firstly by S. H. 0. Police Station Kunjan and later by D. S. P. Headquarters, Gujrat. The prosecution agency thereafter, on 17-3-1979, put up before a learned Magistrate the police report under section 173 Cr. P. C. requesting for cancellation of case. The matter came up before Mr. Muhammad Nawaz Hasrat, Magistrate Section 30, Gujrat who after hearing the Prosecution Inspector passed the order for the cancellation of the case or 17-3-1979. It is further stated that after the aforesaid cancellation order, Amir Hussain Shah A. S. I. Police Station Kunjah entered a report in tae daily roznamcha at No. 12 on the same day to the effect that case F. I.'R. No. 166/78 under section 307/34 P. P. C. entitled State v. Ali Ahmad, etc. was discharged by the Court of Mr. Muhammad Nawaz Ha&rat. Magu-trate Section 30. Fur­ ther support is found for this circumstance from the fact that Ali Ahmad and Inayat had been released on bail and the complainant bad moved an application for cancellation of their bail in the Court of Qazi Muhammad Latif, learned Additional Sessions Judge which application was withdrawn b> the complainant on the ground that the accused had already been dis­ charged. A copy of this order is Annex 'D'. A further circumstance relied upon is that Muhammad Sharif petitioner No. 2 had also applied for bail before arrest and he had been admitted to ad interim bail but at the time of confirmation consistent with the correct position, the learned A. P. P. made a statement before the learned Additional Sessions Judge that the accused had been discharged and thus the application was held to have become infructuous. There was also a counter case lodged by AH Ahmad petitioner No. 1 against the complainant and others under sec­ tions 307/149, 148 P. P. C. giving counter version. 4. The present proceedings have arisen as a result of the fact that the order dated 17-3-1979 was not available one the file. The file of the case was then put up before another learned Magistrate, namely Mr. Rafiq Awan. He summoned the present petitioner on 17-11-1979 vide Annex. 'H'. In the meantime, the petitioners also moved the District Magistrate for holding an inquiry as regards the disappearance of the order dated 17-3 1979. The order of the learned Magistrate dated 17-11-1979 was challenged by the way of revision before a learned Additional Sessions Judge, Gujrat who dismissed the same on 7-6-1980, 5. In this case, the learned Advocate General Punjab Sh. Riaz Ahmad assisted by the learned Additional Advocate General Mr. Rashid Aziz Khan appeared and Shameem Haider A S. 1. was also present with the police record. Indeed, on perusal of the daily diary it appeared that the factum of the cancellation of the case was duly recorded in the roznamcha. However in the meanwhile, the petitioners have also been able to obtain a certified copy of the order dated 17-3-1979 which had become available. A perusal of this order shows that the accused found to be innocent by the Investigating Officer and recommedation made for the cancellation of the case. The Magistrate accepted the recommendation and passed orders on 17-3-1919 in the same term. 6. In the meanwhile, there has been a further development, inas­ much as the parties have arrived at a compromise. Muhammad Afzal, the injured person is present in the Court who is identified by Shameem Haider, A.S.I. Police Station Kunjah. He frankly stated that the parties have compromised the matter and he has foregiven the accused and has brought about peace and amity voluntarily free from all influences. He further submitted that neither he nor the prosecution witnesses have any intention to support the prosecution case. 7. Next, it may be seen that the learned Magistrate had resummoned the accused on the basis of the same police report under section 173 Cr. P. C. under the assumption that there was no order in existence passed on 17-3-1979. This assumption has been proved to be false on being established that such aa order had been made. In the face of these cir­ cumstances, the learned Advocate General, Punjab stated that the impugn­ ed order would stand vitiated on the basis of a wrong assumption and that otherwise no useful purpose would be served in view of the compromise brought about by the parties. 8. The fact of the matter is that the learned Magistrate having can­ celled the police case, it did not amount to discharge entailing acquittal. U was oren for the police agency to carry out further investigation and if is a result thereof sufficient evidence was forthcoming, it was for prosecu­ tion to put a fresh challajn. After cancellation of the police case, it was also open for the complainant to file a private complaint which too has not been done. There was thus no jurisdiction in the successor Magistrate to gnore or review the order of his predecessor dated 17-3-1979 or to initiate fresh proceedings od the same police report asking for cancellation of the case which was blessed by his predecessor. The order having beenl made and conveyed had taken legal effect. 9. It must be pointed out that loss, misplacemeut or destruction off the official records cannot prejudice the rights of the parties and the Courtlc or ths quarters concerned must reconstruct the file. In such a situation it| was the duty of the learned Magistrate not to act in haste but to have inquired into the matter as the passing of the order dated 17-3-1979 was being corroborated by the undisputed entry of the same date in the police diary made by Syed Amir Shah A.S.T. 10. In view of what has been stated above, I would accept the writ petition and quash the impugned order of the learned Magistrate dated 17-11-1979 and of the learned Additional Sessions Judge dated 7-6-1980. In the circumstances of the case.^there will be no order as to costs. (TQM) Petition accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 281 Present ; GHAZANFAR ALI GONDAL, J ABDUL MANNAN—Petitioner versus TriE STATE —Respondent Criminal Misc. No. 2962/B of 1981, decided on 16-12-1981. (i) Criminal Procedure Code (V of 1898) ——S. 497 (1) Proviso—Minor—Grant of bail to—Rule of—Held : Person under age of sixteen years to be granted bail unless there be something in his conduct ^apart from normal acts constituting offence in question) disentitling hani to such grant. [P. 283]5 PLJ 1979 SC 330 rel. (\) Criminal Procedure Code (V of 1898)— —- S. 497(1) Proviso read with Offence of Ziria--(Enforcement of Hadood) Ordinance (VII of 1979)—S. 12 & Pakistan Penal Code (XLV of I860)—S. 377—Kidnapping in order to subject person to unnatural lust — Offence of—Minor —Grant of bail to—Petitioner, minor under age of sixteen years, allegedly persuading victim to accompany him and committing carnal intercourse with him against order of nature—Held : There being nothing in conduct of 'peti­ tioner, apart from normal acts constituting offerees in question, disentitling minor to grant of bail, application for grant of same to be allowed. [P. 283]C (iii) Criminal Procedure Code (V of 1898)—

S. 497 (1) Proviso read with Offence of Ziaa (Enforcement of Hadood) Ordinance (VII of 1979)—Ss. 12 & 2 (a)—Kidnapping in order to subject person to unnatural lust—Offence of—Minor— Grant of bail to—Adult—Definition of—Applicability of—Held : Question of grant or refusal of bail being governed exclusively by S. 497 read with S. 498, Criminal Procedure Code, definition of word "adult" in S. 1 (a) of Ordinance to be wholly irrelevant. [P. (if) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)—

S. 12—See : Criminal Procedure Code (V of 1898)—S, 497 (1) proviso. Mr. Munir Ahmad Bhatti, Advocate for Petitioner. Mr. Khalil Ramdey. A. A. G. assisted by Mr, AHaf Muhammad Khan, Advocate for Respondent. Date of hearing : 16-12-1981. ORDER By a short order dated 16-12-1981, I had granted bail to petitioner Abdul Mannan. This order gives the reasons on the basis of which said bail was granted. 2. The charge against the petitioner is that on 23-5-1981, he per­ suaded Maula Ditta, a small boy aged 67 years and a student of first class of Primary School to accompany him to a field at about 12-30 p.m. after the school hours and there had carnal intercourse with Maula Ditta against the order of nature. On the noise raided by the victim, he was apprehended at the spot and charged with offences under section 12 of Ordinance VII of 1979 and section 377 P. P. C. Before the Additional Sessions Judge, Lahore, school certificate of petitioner was produced on the basis of which he found that petitioner was of 15 years of age at the time of commission of the offence but declined to grant him bail on the ground that according to section 2 (a) of Ordinance Vll of 1979. adult means a person who has attained puberty and petitioner having attained the age of puoerty as is clear from medical report of the doctor, he could not be granted bail for offence under sec­ tion 12 of Ordinance VII of 1979, which is punishable with R.I. for 25 years and section 377 P. P. C. which is punishable with R. I. for ten years. However, the said definition of the word 'adult' in Ordinance VII of 1979 relates to the culpability of persons accused of offences under certain sections of the said Ordinance (not section 12 of said Ordinance) and is whoSSy irrelevant to the question of grant or refusal of bail which is governed exclusively by section 497 read with section 498 Cr. P. C, According to latter part of section 497 (1), if there are reasonable groundi to believe that the person brought before the court has been guilty of an offence p mishable with imprisonment for 10 years or more, he is not to be released on bail. There is, however, a proviso which immediately follows this provision and that is that court may direct that any person under the age of sixteen accused of such offence may be released on bail. It is clear that this proviso resumes the embargo placed on the power of court to grant hasl to person below the age of sixteen accused of an offence punishable with R. 1, for ten or more than ten years. There fore, even though petitioner Abdul Mannan appears to the court to have committed the said offences punishable with 25 years R, I. and 10 years R. I. the court has the discretion to grant him bail. The question however, is what are guide lines for exercise or refusal of discretion for or against an accused person. After giving ray anxious thought to the question, I have come to the conclusion that nonnil rule is that such an accused person should be granted bail, unless there is something in his conduct (apart from the normal acts constituting the offence in question) to disentitle him to grant of bail. Jam fortified in this view of mine by observations made by their Lordships of the Supreme Court in case of Haji Fazal Elahi v. Mr Farah Naz and another (PLJ 1979 SC 330), that discretion in such circumstances should be exercised in the light of facts and circumstances of the case and policy of law is that very young persons should be granted bail in the absence of some circumstances disentitling th?m to grant of bail. In my opinion in the present case apart from the! normal acts constituting the offences in question, there has been, nothing inL, the conduct of petitioner to disentitle him to the grant of bail. It is inj view of this, that I had in my short order dated 16-12-1981. allowed bail! to petitioner. This order will form part of said order dated 16-12-1981. (TQM) Bail allowed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 284 [Sukkur Bench] Pr-sent : MUNAWAR AL1 KHAN, J PIARO—Applicant versus THE STATE and Another—Respondents Cr. Misc. No. 62 of 1981, decided on 19-5-1983. (i) Criminal Procedure Code (V of 1898)— j. 497 (5)—Bail — Cancellation of — Ground for — Respondent released on bail in 1980 enjoying concession of bail uninterruptedly for 3 nearly years—Held : Such concession so long as not abused, to be continued to be enjoyed by respondent. [P. 286]4 (ii) Criminal Procedure Code (V of 1898)—

S. 497 (5)—Bail—Cancellation of—Application for—Delay in filing of—Effect of—Application for cancellatur of bail filed nearly after 2-[ months of grant of bail—Held : Application having not been promptly filed, private party not to be permitted to harass accused by selecting his own timings for moving for cancellation ol bail. {P. 287]C (Hi) Criminal Procedure Code (V of 1898)-

S 497 (5)—Bail —Cancellation of—Accused remaining in Jail for period exceeding two years without conclusion of his trial—I rial not even concluded on 22-12-1980 when respondent (ultimately) relleased on ba il three years after incident—Petitioner applying for cancellation of bail after 24 months of grant of same—Accused in no manner abusing concession of bail during intervening period of nearly three years—Held : Cancellation of bail not to be justified. [Pp. 286, 287, 288]^, B, C & D PL] 1978 SC 327 : 1976 SCMR 360 ; 1980 SCMR 203 & 1977 P. Cr. LJ 277 ref, Mr. Abdul Razzak Soomro, Ad\•'cate for Petitioner. Mr, Amanullah Qureshi. AdvocuU- for the State. Kazi Akhtar All, Advocate for Re -ppiulem No. 2. Date of hearing : ! 2-5-1983. JUDGMENI This is an application for cancellation of bail moved by Piaro Kandhro who is complainant in the criminal case pending against res­ pondent No. 2. 2. The aforesaid application has arisen from the facts which are briefly stated as follows : The respondent Mo. 2 was sent up alongwith other co-accused to face his trial for the murder of Haji Allah Bux Kandhro. Pending conclusion of the trial, the respondent No. 2 made application for his bail which was allowed to him vide order dated 22-12-1980 of the 2nd Additional Sessions Judge, Larkana. Being ag­ grieved by the said order, the petitioner has approached this Court for cancellation of the bail. 3. Mr. Abdul Razzak Soomro was heard in support of the applica­ tion and Mr. Kazi Akhtar against it, Mr. Amanullah Qureshi submitted his arguments on behalf of the State. It was contended by the learned Counsel, for the petitioner that bail has been granted to the respondent No. 2 in total disregard of the principle-, of law and the material avail­ able on record According to him the incident had occurred in a broad- day light and there was no question of mistaken identity. Furthermore, he contended, the occurrence was promptly reported to the police and the names of the accused as well as the witnesses are disclosed in the F.I.R. He further contended that the authority (1980 P. Cr. L J. 391) relied upon by the learned Judge for granting bail to the respondent No. 2. is in­ applicable in the instant case. He further argued that the accused dropped by the police have also been joined by the order of the trial Court and are facing trial like the accused challaned by the police. 4. The learned counsel for the respondent No. 2 has repelled the arguments of the learned counsel for the petitioners. The learned State counsel has also opposed the application for cancellation of bail, supporting the impugned order. 5. I have gone through the impugned and considered it in the light of arguments addressed at the Bar. It appears to me that the order is based on sound reasoning. There is nothing illegal about the order. I cannot agree with the argument that theauthority reported as Ba»hir Ahmad v. The State (1980 P. Cr. L. J. 391) is inapplicable in the instant case. In the reported case four accused were named in the F.I.R. and the eye witnesses too involved all the four of them, yet the police challaned only one accused dropping the remaning three. The learned single Judge took the view that since accused named in the F.I R. have not been sent up by police, the case of the accused who was challaned called for further enquiry. The learned counsel for the petitioner attempted to distinguish the above reported case from the instant case inasmuch as that in the latter case the police had dropped the two accused namely Muhammad Akram and Haji Abdul Haleem mainly on the ground that they had taken the plea of alibi. Muhammad Akram io his application for pre-arrest bail had submitted Certificate of the Hospital of Quetta indicating that he was admitted in the said Hospital during the relevant period. Obviously the plea of alibi ta<en by the accused Muhammad Akram is inconsistent with the ocular evidence which shows that the said accused had partici­ pated in the occurrence. In view of this inconsistency the case of accused Muhammad Akram calls for further enquiry. In the other words it is to be determined whether the eye-witnesses who have implicated the accused have spoktn truth or not. Obviously the same evidence cannot be accepted in respect of other accused including the respondent No. 2, with out further enquiry. Accordingly the bail of the said respondent could not be cancelled until such enquiry has been made. Thus the above authority relied upon by the learned Trial Judge, is fully applicable in the present case. I cannot persuade myself to endorse the view of the learned counsel for the petitioner that the F I.R. has been promptly lodged. It would appear that '.he F.I.R. was lodged at 10.00 AM. whereas it is dis­ closed in the post mortem notes that the occurrence had taken place at 6.00. A. M. Accordingly the argument of the learned counsel for the applicant has no force. The delay in lodging the F.I.R. has remained un­ explained. 6, The prosecution case rests on the evidence of the witnesses who are all interested. The other evidence which supports the ocular evidence is recovery of gun. But there is no report of the Ballestic Expert indi­ cating that the said gun had been actually used at the time of occurrence. 7. It is also difficult to ignore that the respondent No 2 was released on bail as far back a 22-12-1980 since which he has been en­ joying the concession of bail ua-mterruptedly. It has been held time and against that grant of bail is rule and its refusal is only an exception. Of course as provided by section 497 (I) Cr. P. C., a person accused of an offence punishable with death, imprisonment for life or imprisonment for 10 years is not entitled to bail and his case falls within the exception. But once he is released on bail even his case will thereafter be handled in ^accordance with the general rule that is to say that so long he has not abused the concession of bail, he will continue to enjoy it. There is nothing to show that the accused has in any manner abused the concession of bail during the intervening period of nearly three years. There is an other factor which also deserves attention. The accused has remained in Jail for a period exceeding two years without conclusion of his trial. In :view of clause (ft) of the second proviso is sub-section (1) of Section 497 Cr. P. C., he would have been released on bail automatically at the expiry of two years st3tutory period. Unfortunately the trial has not been concluded, even though the incident had occurred three years ago on 30-11-1980. It may also be noted that the application ior cancellation of bail was not filed promptly. The bail was granted on 22-12-1980, but the application was filed after nearly 2\ months. This shows that complainant has selected his own timing for moving for cancellation of the bail. The private party cannot be permitted in this way to harrass the accused when­ ever it suits'him. My attention has been drawn to the fact that even against the two accused who were dropped by the police and have since been joined in consequence of filing of the direct complaint, the tria! Court has deemed fit to issue only bailable warrants although they are facing the same charge of the murder of the deceased like other co-accused. 8. The learned counsel for the respondent has referred to Muhammad Sadiq v. The State 1980 SCMR 203, wherein bail was refused on the ground that it was not fair to go into the merits of the case particularly when the date has already been fixed and the trial was to commence shortly. He has also made reference to the case of Nazar Muhammad r. ,- The State and another (1977 P. Cr. L. J. 2/7.), wherein it was held : "The provision regarding cancellation of bail tan not be made available to private parties to satisfy their grudges against each other or to use a means of v, recking their vengeance. Of course in cases where there is reliable evidence that the accused was misusing the liberty to divert the course of justice the Court could be competent to deprive him of that privilege. I am, there- fore, clear in my mind that the reports constitute merely allega­ tion by private individuals, the veracity of which was not above board as no evidence was produced in support of the facts before the learned Sessions Judge." 9. In the case of Shahid Arsliad

. Muhammad Naqi Butt and two others (1976 SCMR 360), the Supreme Court on being informed by the State counsel that enquiry proceedings were likely to conclude soon, refus­ed to interfere with the High Court's order disallowing bail to the respon­ dent. The High Court nevertheless subsequently granted bail to the respondents. It was observt'-i : - •'In these c:rcani-.tancc-i although we are not happy about the order passed by the learned Single Judge of the High Court, we do not think it advisable to interfere with his order at this stage. If at any time any one of the said two respondents misuses the privilege of bail it will be open to the petitioner to approach the High Court for cancellation of bail." 10. lo the case of Khalid Javid Gillan t. The State (PLJ 1978 SC 327), the Supreme Court expressed its views as to whether assessment of evidence should or should not be made at the stage of bail in the follow­ ing words :—- "Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail ap­ plication, the more so. as the section does not in terms con­ tained in restriction on the Court's power to assess the evidentiary value of the material produced before it," At P. 329 11. For the fore-going reasons I see no justification to cancel the . Accordingly the application was dismissed by short order for reasons o be recorded later on. Above are the reasons for the said order. (TQM) Application dismissed.

PLJ J984 Cr, C PLJ J984 Cr, C. ( Peshawar ) 288 (Abbottabad Circuit Bench) Present : FAZAL ELAHI KHAN, J Sardar ABDUL HAMID- Petitioner Versus MOMIN KHAN and 4 Others—Respondents Criminal Misc. No. 16 of 1984, decided on 28-4-1984 (i) Criminal Procedure Code (V of 1898) -

S. 497 (5)—Bail—Cancellation of—Material available on record sufficient to connect all four accused with commission of offence falling within prohibition contained in S. 497 (1) — Additional Sessions Judge, however, granting bail in utter disregard of such material—Held : Order being beyond scope of jurisdiction of court dealing with bail matters, same to be set aside. [P. 291]J3 (ii) Criminal Procedure Code (V of 1898) - _—S. 497 (5)—Bail—Cancellation of—Medical certificates issued by responsible medical officers showing petitioner suffering from heart disease—Held : Order of (grant of) bail to be maintained in cir­ cumstances. [P. 291]C (Hi) Judge -

Illegal exercise of pow<r by—Effect of—Additional Sessions Judge while granting bail observing accused party having won election, complainant party to naturally launch attack on it—Held : Such illegal exercise of power to debar Judge from trial of case. [P. 2911.4 Mr, Zahoorul Haq, Advocate assisted by Malik Saeed Akhtar, Advo­ cate for Petitioner. Mufti Muhammad Idris, Advocate & Mr. Abdullah Jan Mirza, Advocate for Respondents No. I & 4. Mr. Muhammad Akbar Khan, Advocate for Respondent No. 2. Mr. Muhammad Ayub Tanoli, Advocate for Respondent No. 3. Mr. Muhammad TarSq Khan, Advocate for State. P«te of bearing : 28-4-1984, JUDGMENT This application has been moved by Sardar Abdul Haraeed for the cancellation of bail granted to the accused-respondents by the learned Additional Sessions Judge, Abbottabad. 2. It may be briefly stated that report to the incident was made by Abdul Majid son of Said AH in Police Station Mirpur at 15-25 hours on 28-10-1983 wherein it was stated that on the day of occurrence after attending the marriage ceremony of Aurangzeb son of Mohabbat resident of Aspadar, Sardar Farid, Sardar Rashid, Shah Sultan and Jehanzeb proceeded towards the general road where they came across Momin Khan, Ali Asghar sons of Ali Khan, Muhammad Salim, Irshad sons of Aziz Khan standing there duly armed with rifles and guns. AH the four accused challenged Sardar Farid, Sardar Rashid, Shah Sultan and Jcbanzeb and started firing at them. As a result of this firing all the four persons received fire arms injuries. Zaman son of Mah Wali, Gul, Hassan son of Mir Abdullah, Zulfiqar son of Mir Alam residents of Maira Mirpur and Aspadar were stated to be the persons present on the spot and having witnessed the occurrence. Motive for the offence was given out to be the ill-feeling between the parties due to election rivalry. Initially case was registered against the accused under Sections 307/34 P. P. C. but subsequently when it was found that Sardar Murid and Sardar Rashid have expired as a result of their injuries, Section 302 P. P. C. was added to the charge. 3. All the four accused charged for the oifence made an application before the Illaqa Magistrate for their release on bail. The learned Magistrate on consideration of the material before him rejected the same vide his order dated 26-12-1983. However, the learned Additional Sessions Judge, Abbottabad (Mr. Mir Gulab Khan), after hearing the arguments of the learned counsel for the parties allowed bail to all the four accused vide the impugned order. 4. I herad Mr. Zahurnl Haq, Bar-at-Law assisted by Malik Saeed Akhtar, Advocate for the petitioner, Mr. Abdullah Jan Mirza, Advocate for Momin Khan accused-respondent, Mufti Muhammad Idrees, Advocate for Irshad and Muhammad Salim accused-respondents, Muhammad Akbar Khan Advocate assisted by Dr. Muhammad Ayub Khan, Tanoil, Advocate for Ali Asghar accused-respondent and Mr. Muhammad Tariq, Advocates represented the State. 5. The learned counsel for the petitioner critcised the order of the learned Additional Sessions Judge and was of the view that in case the order in question is maintained there would be no necessity to proceed with the trial of the accused as the learned Additional Sessions Judge has positively arrived at the decision that this was a cross case and that the accused have reiorted to firing in self-defence, that he has assumed and has taken it for grant—that the recoveries allegedly made from the roof of the houses of the accused suggests that the firing was made in self-defence. That the learned Additional Sessions Judge has also formulated two counter versions of the occurrence and has extended, before the trial, the benefit of doubt to the accused-respondents. In this view of the matter it was argued that the order io question is in violation of the provisions of Section 497 Cr, P. C. The learned counsel further argued that the F.I.R., the statements of the prosecution witnesses recorded under Section 164 Cr. P. C, the medical evidence, the manner in which the occurrence took place, the recoveries from the spot from the houses of the accused and the counter report lodged by All Asghar accused have totally been ignored which in fact are sufficient grounds to believe that the accused are connected with the capital offence for which they are charged. That unnecessary importance has been given to the alleged recovery which was made after sufficient long time of the occurrence and also to the alleged injuries found on the persons of the accused party. It was lastly agrued that in the bail matter the learned Judge was required to tentatively take into consideration reasonable ground for arriving at a finding whether there existed reasonable grounds to believe that the accused have com­ mitted the offence for which they are charged or not. He was not required to go deep into the matter and make critical appreciation of the circum­ stances and to give its positive opinion about the case of the prosecution or the defence. 6. On the other hand, the learned counsel for the respondents in their arguments which took about 3 hours tried to justify the order of the learned Additional Sessions Judge. The report lodged by Als Asghar was discussed and was stated to be recorded by the Investigation Officer on his own record, It was also argued that private complaint has been moved before the lllaqa Magistrals by one Muhammad Rafique son of Lai Khan wherein counter version of the occurrence has been brought to light. It was further argued that the injuries on the persons of the accused party, the recoveries of empties from the roof of the houses of the accused, the recovery of two damaged vehicles from the spot supports the suggestion of the defence that the version given in the report lodged by the complaint is not a honest one. In support of their contentions that such factors have weighed with the Courts in granting bail to the accused numerous authorities of various High Courts and that of the Supreme Court were cited. 7. The learned counsel for Momin Khan, accused-respondent also prayed for the maintenance of the order of his bail on the additional ground of alibi and illness. The learned counsel contended that there is sufficient evidence available on the record to show that Momin Khan accused was not present in his village at the relevant time. Reliance was placed also on the Medical Certificate issued by the Specialist in support of the serious illness of his client. 8. After hearing the learned counsel for both the sides and perusal of the record before me 1 have no hesitation in holding that the order of the learned Additional Sessions Judge is unsustainable on facts as well as under the law. In arnving at the conclusion reference can be made to the order of the learned Additional Sessions Judge dated ls-1-1984, wherein after reproducing the contention of the learned counsel for the accused in the last para, of the order, he failed to set up the case for the prosecution consisting of the First Information Report, the statements of the eye wit­ nesses recorded under Section 164 C.r. P. C., the medical evidence, the re­ coveries from the spot, the report lodged by Ali Asghar one of the accused and other attending circumstances. The learned Additional Sessions Judge straightaway took up the case of the defence and without advertising to the prosecution case dislodged all the aforementioned evidence for the prosecution. In dealing with the defence version alone it was observed that admittedly all the accused petitioners have been charged for firing but none of them have been attributed a specific role to the effect as to who was the person who fired effectively. It is very astonishing that nspite of the fact that two innocent perrons lost their lives as a result of the firing for which all the four accused are directly charged the above fact prevailed with the learned Judge as a ground for granting bail to the accused. Similarly, the recoveries of empties from the roof of the houses belonging to the accused party, though this recovery was made after sufficient long time, as a ground, or in the wording of the learned Additional Sessions Judge, given a smell, that the incident did not take place in the manner given by the prosecution. According to the learned Judge the injuries on the person of the accused party was held not to rule out the possibility that the accused acted in self-defence. However, the learned Judge totall'y ignored the earlier version given by Ali Asghar of the occurrence in which he did not attribute the injuries or the damage caused to the vehicles to anyone from the complainant party though the complainant party was known to the accused party as they had election rivalry. It was not the case of the defence that the complainant party was not known to Ali Asghar at the relevant time. Inspite of the fact that the learned Judge has remarked that in criminal cases burden is one of the prosecution to bring material on the file to connect the accused with the commission of the offence no effort has been made, as has been stated above, to refer to those material in his order placed before him by the prosecution. The learned Judge has further committed serious error in making the following observations : — "This being the position the attending circumstances of the case coming to light after the tentative assessment of the evidence of the prosecution there is a doubt tiat the accused petitioners have acted in self-defence and the question of aggression and initiation can be well settled during the trial". His observation that the accused party having won the election it was but natural for the complainant party to have launched an attack upon the accused party, is illegal exercise of power by the learned Additional Sessions Judge and can debar him from the trial of the case. In this view of the matter the order of the learned Additional Sessions Judge, which is baaed on utter disregard of the material available on the record and is beyond the scope of the jurisdiction of the Court dealing with the bail matter, is set aside The material available on the record as has been referred to above are sufficient at this stage to connect all the four accused with the commission of the offence falling within the prohibition contained in sub-clause (I) of Section 497 Cr. P. C. 9. The case of Momin Khan accused, however, on the ground of his illness is worth consideration. The plea of alibi for the time being has rightly been rejected by the Courts below and was left to be agitated at the trial. The certificates issued are not of unquestionable character to bel accepted on the face of it, in the circumstances of this case. The medical!- certificates having been issued by a responsible Medical Officers showing!^ that the accused Momin Khan is suffering from heart disease , in my| opinion is a ground on which the order of his bail can be maintained. Consequently the order of the learned Additional Sessions Judge granting bail to the three accused namely AH Asghar, Muhammad Salim and Irshad is set aside. They are present in Court and are taken into custody and sent to judicial lock-up to face the trial. The order of bail regarding Momin Khan accused-respondent is maintained solely on the ground of his illness. (TQM) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 292 Present : RIAZ AHMAD, J THE STATE—Appellant versus TAUQIR HUSSAIN—Respondent Criminal Appeal No. 353 of 1972, decided on 26-3-1984. (i) Criminal Procedure Code (V of 1898)—

S. 417—Appeal against acquittal—Grounds for interference— Held: Interference not to be made in acquittalorder merely because of there being possibility of forming another view on basis of evidence on record, unless view formed in support of acquittal be perverse causing failure or miscarriage of justice—Held further :, Entire evidence to be re-assessed in appeal against acquittal in order to find out whether conclusion arrived at by trial Court be in accord with settled principles governing administration of criminal justice. [P. Pp. 294 & 295]B PLJ 1979 SC 142 ; PLD 1964 SC 422 ; PLD 1969 SC 398 ; PLD 1951 FC 107 ; 1972 SCMR 672; 1970 SCMR 755; 1968 SCMR 1168 ; PLD 1972 SC 495 & 1971 SCMR 521 ref. (ii) Prevention of Corruption Act (II of 1947)—

S. 5 (2) read with Pakistan Penal Code (XLV of I860)—S. 161 & Criminal Procedure Code (V of 1898)—S. 417—Illegal gratification- Acceptance of — Offence of — Acquittal in — Appeal against— Evidence—Appraisal of—Witnesses watching transaction of tainted money and in whose presence matter discussed and illegal gratifica­ tion demanded not produced—Statement of complainant as to pass­ ing of tainted currency notes remaining inconsistent—Trial Court disbelieving such statement regarding demand of illegal gratifica­ tion by respondent—Held : Acquittal of respondent being based on cogent and sound reasons and same being also in accordance with established principles governing appraisal of evidence in criminal cases, no interference to be made with same. [Ps. 294 & 295]A, D, F &G (Hi) Prevention of Corruption Act (II of 1947)— "----&; -4-^Gratificatiou^other than legal remuneration—Acceptance of—-Presumption regarding — Held : Cogent, strong and adequate evidence to be required in order to draw presumption under S. 4 of Act II of 1947—Held further : Feeble and inconsistent evidence not to permit raising and acting upon such presumption. fP. 295]C PLD 1964SC482 rel. (iv) Criminal Trial —

Evidence—Material witnesses—Failure to examine—Effect ofV- Witnesses in whose presence matter discussed and illegal gratifi­ cation demanded not produced-Held : Trial Court to be justified in refusing to believe solitary statement of complainant on question of demand of illegal gratification by accused. ]P. 257]/> (v) Criminal Trial—

Witnesses —Failure to produce—Presumtion regarding—Persons in whose presence matter discussed and illegal gratification demand­ ed not produced—Held : Justifiable presumption of such persons, if produced not supporting prosecution case to be raised in circumstances. [P. 295]£ Ch. Qamaruddin Mco, Advocate for Appellant (State). Sh. Nisar Qutab, Advocate for Respondent. Date of hearing : 12-3-1984. JUDGMENT This appeal has been brought by the Provincial Government assailing the acquittal of the respondent on charges under Section 161 of the Pakistan Penal Code and under Section 5 (2) of the Prevention of corrup­ tion Act 1947, as recorded, by the Special Judge Anti-Corruption at Lahore vide his order dated 8-11-1971. The appeal was admitted for hearing by this Court on 24-3-1972. The appeal was admitted mainly on the ground that in view of Section 4 of the Prevention of Corruption Act, the presumption as to the motive-as contained in the ;>ection 161 of the Pakistan Penal Code did arise, which the learned trial Judge had failed to raise. 2. The facts giving rise to the registration of a case against the respondent and his consequent trial are as follows. On 13-12-1967, the complainant Abdul Hameed P. W. 3 contacted one Ali Ahmad S. I, Anti-Corruption Establishment at Lahore, and report­ ed that the respondent a Taxation Clerk in the office of the Excise & Taxation Department Lahore had contacted him, and intimated that the department is proposing to enhance the assessment of annual rental value of the houses owned by him, which would result in the enhancement of the tax to be levied. The complainant further stated that at time his tenants namely Muhammad Hanif and Hameed were also present. Accord­ ing to the complainant the respondent told him to visit his office with reupees eighty which the respondent demanded as illegal gratification, for not effecting the proposed enhancement in the tax. The complainant took the respondent aside and allegedly a settlement to pay Rs. 50/-as illegal gartification was arrived at between the complainant and the respondent. 3. Ali Ahmad S, 1, produced the complainant before the ADM, Lahore who deputed Ch. Muhammad Saleem Magistrate P. W. 1 to con­ duct and supervise a raid. Accordingly a raid party consistng of the afore­ said Magistrate, the complainant and Ali Ahmad S. I. and two foot constables was formed, and the raiding party proceeded to the office of the Excise & Taxation Department at Lawrance Road , Lahore . The com­ plainant after entering the office of the respondent came back, and inform­ ed the Magistrate that the respondent was not available, and there was no Hkeli-hood of his return. On 14-12-1967 at about 12 00 Noon the raiding party reached the office of the Excise & Taxation Department. The respondent was again found absent, but his Peon Muhammad Shaft asked the complainant to get an application prepared, which the complain ant got it written from a petition writer sitting in the office. According to the complainant the Peon enquired from the complainant if he had brought the money, and the complainant told the Peon that he had been able to arrange rupees fifty only, and the rest will be paid by him when the Peon would come to his house, and thus the complainant kept waiting for the return of the respondent. 4. At 1.45 P. M. the respondent entered the office on a scooter, and after parking the same he proceeded to the office followed by the complainant. According to the prosecution version the Magistrate and the S. I. also followed the complainant in the office. They observed that after passing through the room, the complainant entered in an other room which was his office. The Magistrate deputed Sharif Ahmad Foot-Const­ able a member of the raiding arty to enter the office of the respondent to watch the transaction. It was alleged that the Magistrate and the S 1. were watching through chik hung on the door that the complainant was present near the respondent. In the meanwhile Sharif Ahmad Foot-Const­ able came out and informed the Magistrate that the money had been passed. Immediately the Magistrate and the S. I. entered the office and they saw that the application of the complainant was lying on the table of the respondent, and the complainant was signing the same, while tainted currency notes were still in the hand of the respondent and thus the tainted currency notes were recorded. The learned trial Judge proceeded to acquit the respondent on account of the inconsistent statement of the complainant, lack ofcorroboration and the failure on the part of the prosecution to produce Sharif Ahmad Foot-Constable in the witness box who had watched the transac­ tion. Ali Ahamad S. I. was also not produced by the prosecution, and thus the learned trial Judge declined to record conviction on the basis of the statement of solitary witness /'. e. the complainant. 5. I have very carefully gone through the impugned judgment and the evidence on the record, and having considered the same, I am of the view, that the acquittal was based on cogent and sound reasons, in accord­ ance with the establishment principles governing the appraisal of evidence in criminal cases. The law governing the interference in acquittal is clear and need not be reiterated in detail. Tt is not open to interfere in an acquittal, merely because another view can be formed on the basis of the evidence on the record of a case, unless the view formed in support of acquittal is perverse, causing failure or mis-carriage of justice. It is further 'mportant to note that in appeal against the acquittal, the entire evidence has to be re-assessed, with a view to find out whether the conclusion arrivec at by the trial court is in accord with the settled principles governing administration of criminal justice. It has to be further seen that the acquit-j tal "is not based upon the misereading of the evidence, or upon such error which would speak for itself. The law on the subject was discussed at length by the Supreme Court of Pakistan in a case reported Billu alias Inayatullah v. The State (PLJ 1979 SC 142). The same was also followed by the Supreme Court of Pakistan in the case reported as Abdai Majid v. Suprintendent and Remembrancer of Legal Affairs Government of East Pakistan (PLD '964 SC 422), Ghtilam Muhammad v. Muhammad Sharif and another (PLD 1969 SC-398), Ahmad v. The Crown (PLD I95i FC 107), Faizullah Khan v The State (1972 SCMR-672), Qazi Rehman Gul v The State (1970 SCMR 755), Gul Nawaz v. The State (1968 SCMR-1168 Part- 2), Khalid Saigol v. The State (PLD 1972 SC-495) and Abdul Rashid v. The State (1971 SCMR-521). I respectfully follow the law laid down in the aforesaid judgment. 7. In the peculiar circumstances of this case it is extremely difficult ( for me to draw a presumption as envisaged by Section 4 of the Prevention! of the Corruption Act-1947. To draw such presumption there must bej cogent strong and adequate evidence on the record of the case. Feeble and inconsistent evidence would not permit to raise such presumption and] to act thereon. I find support in my view by the judgment of the Supreme 1 Court of Pakistan reported Abdul Khaliq r, The State PLD 1964 SC-482. 8. In the circumstances of this case the learned trial Judge was justi­ fied, in refusing to believe solitary statement of the complainant, on the question of demand of illegal gratification by the respondent. Besides failure on the part of the prosecution to produce Sharif Ahmad FootJ Constable despite the fact that opportunities were provided to the prosecu­ tion to produce him, I have noticed that the failure of the prosecution to produce Muhammad Hanif and Hameed tenants of the complainant in whose present the question of the reduction of the tax was discussed, and the illegal gratification was demanded is also fatal o the prosecution.i The failure to produce these witnesses would give rise to raise justifiable^: presumption, that had they been produced, they would not have supported! the prosecution case. 9. The statement of the complainant is inconsistent as to the passing! of the tainted currency notes. In the first instance soon-after raid heJF deposed that he had himself passed on the tainted currency notes to thef respondent, but while appearing in court he stated that he gave the tainted currency notes alongwith the application to Muhammid Shafi Peon who then passed it to the respondent. 10. For the foregoing reasons, I am not inclined to interfere withi the acquittal of the respondent, because it is based upon cogent and soundp reasons, and was in accord with the established principle of law governing! the appraisal of evidence in criminal case. Hence this appeal is rejected. (Aq. By.) Appeal rejected.

PLJ 1984 Cr PLJ 1984 Cr. C. Karachi 296 (Special Appellate Jurisdiction) Present : Z. C. VALIANI, J IOIS1F STAVGIANOUDAK.1S and 7 Others—Appellants versus THE STATE-Respondent Special Criminal Appeal No. 12 of 1983, decided on 5-2-1984. Customs Act (IV of 1969)--

Ss. 156 (1) (8), 178 & 185-F—Smuggling of goods—Offence of— Conviction for—Challenge to—Appellants neither beneficiaries nor directly involved in smuggled goods—Special Judge (Customs), however, convicting and sentencing them to 18 months R. I. and fine of Rs. 20,000 on their own plea of guilt—Appellants being foreigners and having no source of income in Pakistan not in position to furnish suretiies on grant of bail or to pay heavy fine imposed on them—Held : Sentence awarded to be reduced to period already undergone and fine of Rs. 5,00o/- in order to meet ends of justice in circumstances. [P. 291]A & Mr. Sohail Muzaffar, Advocate for Appellant. Mr. M. A. Sattar, Advocate for State. Date of hearing : 22-1-1984. JUDGMENT Appellants abovenamed were convicted under section 156 (I) (8) read with Section 178 of Customs Act 1969, on their own plea of guilt by Special Judge (Customs & Taxation), Karachi in Case No. 140/83 vide judgment dated 7-12-1983 and sentenced to suffer 18 months R. I. and fine of Rs. 20,000,'- each or in default to suffer further R. 1. for one month, have preferred the above appeal under section 185-F of Customs Act, 1969, read with Section 112 Cr. P. C., on the following facts and grounds. That the appellants are the Seamen and were the Crew members of M. V. DODO-V, when on or about 27-11-1982, the appellants were arrest­ed from their Ship in High Seas by Pakistan Coast Guards, for carrying allegedly illicit Cargo of over 7000 crates of whisky. The appellants, who are friendless and Greek Nationals remained in custody for over one year, as an under trial prisoner although they were released on bail by this High Court, but since they had no means to furnish surety, they remained in Jail and could not avail the indulgence granted by this Court. That the Crew members have been treated at par with Captain, al­ though no role at all has been assigned to the Crew either in F, T. R., Challan or the Charge framed by the trial Court. It is submitted, that the sentence awarded to the Crew is on the higher side and they have no means to pay fine either. The learned advocate in support of the above grounds relied upon cases reported in 1978 P. Cr. L J 633 and 1978 P. Cr. L J 209 and submitted that all the appellants have remained in custody right from day of their arrest (27-11-1982) as they were unable to furnish sureties and are not in a position to pay fine imposed on them, as they have no source of income at all in Pakistan nor any relatives and as such their further detention causing extreme hardship to their respective families, in their home countries, as they are the only earning members of their respective families and consequently sentence undergone by them may be considered as sufficient punishment in their cases, specially as they were not the beneficiaries of the goods in question, but were only crew of the ship and had nothing to do with the alleged smuggling. In addition to this their is nothing in FIR to suggest that they were in any way involved in sale of the goods in question. Learned counsel appearing for the State on the other hand submitted, that fine imposed on appellants may be reduced to Rs. 10,000/- and im­ prisonment to the period already undergone by them, as present appellants were not directly involved in sale of the smuggled goods. I have carefully considered the above submissions made by the learned advocates before me and have gone through the impugned judgment. It is admitted position, that present appellants are in no way concerned in sale of the goods in question, which is evident from FIR as well as impugn­ ed judgment. It is also admitted position that these appellants were not in position to furnish sureties on grant of bail nor they are in position to pay heavy fine imposed on them, as they are foreigners and have no source of income in Pakistan nor any relatives to help them. Keeping in view these admitted facts on record, the cases cited by the learned counsel for appellants are applicable to the facts of the present case. Therefore I allow the above appeal to the extent, that sentence award­ed to appellants are reduced from 18 months R. I. to the period already undergone bv them and fine of Rs. 20.000/- imposed on each one of them is reduced to Rs. 5,000/- (on each) or in default to suffer further R. I. for one month only, as present appellants are neither beneficiaries of goods in question nor directly involved in sale of smuggled goods and such reduc tion of sentences awarded to them by this judgment would meet the ends of justice, in view of the facts of the present case. The above appeal is disposed off in the terms of above judgment. (MIQ) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 297 Present : ABAID ULLAH KHAN, J MUHAMMAD HANIF—Petitioner versus THE STATE and 3 Others—Respondents Cr. Misc. No. H8P-B of 1983, decided on 27-8-1983. Criminal Procedure Code (V of 1898)—

S. 497 (5)—Bail—Cancellation of — Different agencies of police department finding respondents not present at spot and as such committing no offence attributed to them-Held : Impugned order of Sessions Judge treating case of respondents as one of further enquiry and releasing respondents on bail being neither perverse nor arbitrary, no interference to be made by High Court. [P. 300]v4 Syed Afzal Haider, Advocate for Petitioner. Chaudhry Muhammad Anwar Bbinder, Advocate for Respondents. Sardar Muhammad Khurshid, Advocate for State. Date of hearing : 27-8-1983. ORDER This petition seeks cancellation of bail allowed to respondents 2 to 4 by the learned Sessions Judge, Gujranwala, on the 5th May, 1983, Criminal Miscellaneous No. 1481-B of 1983, has been moved for cancella­ tion of bail of Muhammad Yousaf, respondent 2 in that petition granted by the learned Sessions Judge, Gujranwala. This order will dispose of both the petitions. 2. The facts of the case laid down against the accused-respondents, as can be gathered from the fiist information report, may be stated in the following words. The complainant and the accused parties received water from the Government installed tubewell No. 2, Jhang Branch, for ir­ rigating their lands. The turn of water of the complainant party started from sunrise on Fridays and lasted for twenty-four hours. As the electric motor of the tubewell went out of order it stopped pumping out water. The accused party got the motor repaired at their own expense and, therefore, prevented the complainant party from getting water from the tubewell according to their turn in the morning of Friday, the 20th August, 1982. Nazir, brother of the complainant and the deceased, who had gone to irrigate land with water from the tubewell in the morning returned home and told Muhammad Hanif, complainant, that Sardar (respondent 2), Sultan Ahmad (respondent 3), Gulzar Ahmad (respon­ dent 4), Muhammad Yousaf (respondent 2 in Criminal Miscellaneous No. 1481-B of 198 •) and Khizar, who were at the nakka, and stopped him from getting water. Accompanied by his brothers, Nazir and Muhammad Zarif deceased, and one Muhammad Ashraf, the complainant went to the nakka at about 6-30 a.m. Gulzar Ahmad, Muhammad Yousaf and Khizar, each armed with a gun, Sardar and Sultan Ahmad, empty handed, were found at the spot. Upon the complainant's inquiry the accused replied that as they had got the electric motor of the tubewell repaired by spending Rs. 1,000.00 they would not permit the complainant party to irrigate from the tubewell. As the members of the complainant party insisted upon getting water Sardar and Sultan Ahmad raised lalkara and exhorted Gulzar Ahmad, Muhammad Yousaf and Khizar to attack. Muhammad Yousaf opened fire with his gun and the shot hit in the abdomen of Muhammad Zarif. The shot fired by Gulzar Ahmad hit the deceased in the left parietal region. The deceased fell down on the ground. Khizar fired a shot which hit the complainant on the chest. An other shot fired by Muhammad Yousaf hit in the left knee of Muhammad Ashraf. The accused fled away towards the village and Muhammad Zarif died at the spot, 3. In the first round of investigation the Sub Divisional Police Officer, Hafizabad found that all the five accused, namely, Sardar, Sultan Ahmad, Gulzar Ahmad, Muhammad Yousaf and Khizar had participated in the commission of crime. On the application of the accused party investigation was transferred to the Inspector of Police, C. I. A. Gujranwala, who accepted the plea of alibi set up by Muhammad Yousaf though he rejected such a plea taken up by Gulzar Atrmad. On another application by the accused the investigation was transferred again to the Superintendent of Police, Gujrat, under whose directions the case was investigated by the Deputy Superintendent of Police, Headquarters, Guj­ rat. The report of the Superintendent of Poliee, Gujrat, was that Gulzar Ahmad and Muhammad Yousaf were not present at the spot at the time of occurrence. On the complainant's move the Inspector-General of Police entrusted the investigation to the Crimes Branch. The Deputy Superinten­ dent of Police, Crimes Branch, Lahore endorsed the absence of Gulzar Ahmad and Muhammad Yousaf at the spot when the occurrence took place. When the matter was placed before the Inspector-General of Police he ordered that Gulzar Ahmad and Muhammad Yousaf should be placed in column 2 of the police report while Sardar, Sultan Ahmad and Khizar should be entered as accused in column 3 of the report. The police as a matter of fact treated Gulzar Ahmad and Muhammad Yousaf to be innocent, 4. On the basis of the finding of the police that Gulzar Ahmad and Muhammad Yousaf were innocent the learned Sessions Judge considered their case to be one of further inquiry and admitted them to bail. As Sardar and Sultan Ahmad were alleged to be empty handed at the time of occurrence they were enlarged on bail. The petition for cancellation of bail of the last mentioned two accused was dismissed by the order of this Court dated the 18th June, 1983. 5. The question demandeding determination is whether bail granted to Gulzar Ahmad and Muhammad Yousaf in the circumstances should be cancelled The learned counsel for the complainant-petitioner contended that the occurrence had taken place in the land of the complainant in broad day light and there could be no question of mistaking the identity of the assailments. He maintained that specific parts of firing gun shots had been assigned to Gulzar Ahmad and Muhammad Yousaf in the first information report which had been lodged without delay and, therefore their plea of alibi, which was manufactured one, could not have been accepted as justification for allowing them bail. He said that the case had not been faithfully investigated after the investigation had passed out of the hands of the Sub Divisional Police Officer, Hafizabad, because the Members of Majlis-i-Shoora had been pressurising the investigating officers to record finding favourable to the accused. 6. The learned counsel for the accused-respondents submitted that Gulzar Ahmad, who was a municipal councillor, had been attending a meeting of the councillors at the house of Mirza Abdur Rashid, another councillor, at Hafizabad. He pointed out that six councillors, who had been in meeting with Gulzar Ahmad had, appeared before the investigating officer to bear out of his presence with them at the alleged time of occur­ rence. He has also produced affidavits of these councillors to that effect. According to the learned counsel Muhammad Yousaf produced evidence before the investigating agency that he had been in Gahri Awan, a village ten miles away from the place of occurrence, at the time the occurrence is said to have taken place. 7. The learned counsel for the respondents drew attention to the fact that on the 12th February. 1961, Gulzar Ahmad had ccompanied hahu son of Kala, to police station Hafizabad where Shahu had got registered a case under section 302/34 of the Pakistan Penal Code against. Muhammad Hanif complainant and his brothers, Nazir and Siddique, and that it was out of grudge that the complainant had named Gulzar Ahmad and Muhammad Yousaf as culprits in the instant case. 8. Be'that as it may at least three different agencies of the police department have found that Muhammad Yousaf was not present at the spot and that he did not commit the offence attributed to him. Similar is finding in respect of Gulzar Ahmad by two investigating agencies of the police. In these circumstances the impugned order of the learned Sessions Judge treating the case of Gulzar Ahmad and MuhairTmad Yousaf to be one of further inquiry and releasing them on bail cannot be said to be perverse or arbitrary. Therefore, it does not demand interference by this Court. The petitions for cancellation of bail are dismissed. (MIQ) Petitions dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 300 Present : AKHTAR HASSAN, J MUHAMMD ABBAS—Petitioner Versus MUHAMMAD RIAZ and Another-Respondents Cr. Misc. No. 664-B/1984, decided on 15-4-1984. (i) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498—Bail—Application for—Rule regarding—Held : Same court to deal with all subsequent applications by same accus­ ed or others involved in same case. [P. 303]£ 1984 SCMR 134 ref. (ii) Criminal Procedure Code (V of 1898)—

S. 497 (1) Proviso II—Bail—Grant of—Delay—Effect of—Held : Second proviso to S. 497 (1) haying taken care of delay, in trial, it becomes almost right to seek bail after lapse of prescribed time— Held further : Delay of lesser duration, as corollary, not necessarily to justify bail. [P. 303]C (iv) Zina °(7 Vic f im "Examination of-Semen-Absence of-Effect ™n : iT°f re mg P. ossibilit y of male having not ejaculated semen at all dues to anxiety or nervousness at time of committing onence, ol zina, absence of semen not to be decisive. [P. 303]4 (v) Zina— of - V ictim-Examination of~V 1C tim not shown to be h« i SCX u intercourse earlier-Presence of blood on swabs, healed tears on hymen, its tightness as also tenderness to admit two Srtnf- - W i P ?<! n Corroborating version of prosecutrix-Held : tact of victim s orjfice being too tender to be touched to suggest Malik A. R. Arshad, Advocate for Petitioner. Mr. Muhammad Afzai Wahlah, Advocate for Respondents. Mr. Sabir Naseem, Advocate for State. Date of hearing : 15-4-1984. ORDER to be rather a vital circumstance justifying in some measure absence of injuries on her person, 5. Nearly 4-5 times their applications moved before Ch. Anwar AH, Additional Sessions Judge, Sheikhupura, were turned down. Incidentally, he was away to Islamabad on Shariat Course when in his absence last time, they moved an application before Mian Ghulam Ahmad, Sessions Judge, Sheikhupura who in his order dated 19-2-1984 allowed them bail primarily on the ground that the challan had not yet been filed. He was further influenced by the fact that since the prosecutrix alone was the witness, most likely it will not turn out to be a case of Hadd. 6. By the present petition moved on behalf of the victim, it was contended that the very premise upon which the learned Sessions Judge proceeded to grant bail was not obtaining as on the relevant date. He was in fact said to have been misinformed by Muhammad Sadiq A.S.I, that the challan had not yet been filed in the Court. According to counsel, the challan had already been filed in the Court of the Ilaqa Magistrate on 7-12-1983 and that in a way, the learned Sessions Judge was misled to believe otherwise. A certified copy of the chailan has been replaced on the present petition. It supports the version that it had been with the Ilaqa Magistrate on 17-12-1983. Therefore, the learned Sessions Judge while passing the order was led to make an incorrect assumption. 7. It was, however, contended that since the case was triable by the Court of Sessions, what the police official meant to convey was that the challan had yet not been presented there. This plea appears to be a subterfuge for the mischief. Challans in cases triable by the Court of Session have to be invariably filed before the Ilaqa Magistrate and then those are sent up. The order was for obvious reasons procured by mis­ representation. The learned Sessions Judge, Sheikhupura, will proceed against the Police official, namely, A. S. I. Muhammad Sadiq who con­ veyed him the wrong information. 8. The other ground which weighed with the learned Sessions Judge was that possibly the punishment will not be Hadd. The inference thought not very wrong missed entirely to visualise that the punishment could be even imprisonment for twenty-five years under section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. This is how undue leniency was shown to the accused-respondents on these hypo­ theses. 9. There was some confusion about the medical opinion by which the lady doctor had expressed that the prosecutrix had not been ravished within 17 days before her medical examination on 4-5-1983. In fact, this opinion appeared to be somewhat anomalous to me and I had to call the lady-doctor who is present in Court. She has referred to page 143 of Medical Jurisprudence and Toxicology by Dr. S. Siddiq Hussain, 5 th Edition, 1976, which no doubt provides : "In the living woman, motile spermatozoa in the vagina can be found over 100 hours after coitus and non-motile spermatozoa for as long as 17 days...". 10. Theoretically, the doctor may not be wrong to hold the opinion but then presence of blood oa the swabs had to be accounted for. Nothing came from her expert opinion about it. Likewise, way was not decisive because there was ejaculating semen at all due to anxiety, or nervousness facing at the time of committing the offence. On his own showing as his first version, the accused had to slap the girl. It obviously suggested that he had not an easy-go and the moments were turbulent to affect his ability to ejaculate. Correspondingly, the presence of blood on the swabs, healed tears on the hymen, its tightness as also tenderness to admit two fingers only with pain, constituted data to give some weight to the person of the prosecutrix. She was by age only 13 There should be some inspiring material to ascribe changes in her hymen to some other event. She was not shown to be used to sexual intercourse earlier and the fact that her orifice was too tender to be touched, suggested that she was outraged for the first time in all probability in the impugned occurrence. 11. It was argued with reference to a few authorities that bail once, allowed may not be recalled especially when long time was taken to submit challan and the speedy trial of the accused was not in sight. The respondents had been in detention for about 8 months awaiting completion of the cha'lan No doubt, early submission of challan is the need for speedy trial but at times manoeuvring delay pur­ posely may not be ruled out. Anyway, second proviso to section 497 (1) Cr. P. C. takes care of delay in trial and after the lapse of prescribed timej it becomes almost a right to seek bail. As a corollary, delay of lesser duration may not necessarily justify bail. The respondents' detention was yet not of the requisite length and did not of its own force matter much. The safer and sagacious course seems to see the basic facts involved in a criminal case. Allegations-wise, having had a go upon an adolescent virgin girl of a cobbler's family by an accused claiming himself to be aj Zaoiindar in a secluded place during day time speaks much for itself. Thejo medical data to a great extent lends corroboration to it, all the more when| the unsophisticated victim of 13 was not sans character. 12. The learned Sessions Judge who had earlier dismissed no less than five applications for bail made by these very respondents, was due back on 25-2-1984 after completion of Shariat Course. The learned Sessions Judge should have in propriety waited for four days till the Addl. Sessions Judge could resume and take up this application for his own consideration. Probably the respondents availed an opportunity uncon­ scionably. The rule is that the same Court should deal with all subse-. quent applications by the same accused or others involved in the samel case. Muhammad Yousaf v. The State (1984 SCMR 134) may be| referred to. 13. For all the above reasons, I cancel the respondents' bail. TheyL. be taken into custody. J 14. A copy of this order shall be sent to Mian Ghulam Ahmad, the learned Sessions Judge, Sheikhupura, to take action against the concerned A.S.I, as observed above. (TQM) Bail cancelled.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 304 Present : QURBAN SADIQ IKRAM, J PEHLWAN-Petitioner versus AHMAD KHAN and 6 Others—Respondents Criminal Revision No. 998 of 1972, decided on 12-5-1984. Criminal Procedure Code (V of 1898) —

S. 439—Acquittal—Order of—Revision against—High Court— Exercise of jurisdiction by—Held : Revisional jurisdiction to be exercised sparingly and solely in cases involving misreading of evi­ dence or where material injustice be caused by acquittal of accused— Judgment in case based on proper appraisal of oral as well as documentary evidence on record and no illegality or infirmity pointed out—Complainant also remaining negligent in prosecution of case in High Court for almost ten years — Held : No material injustice having been done to complainant, revision against acquittal to be dismissed in limine. [P. 305]/4, B & C Ch. Muhammad Sadiq, Advocate for Petitioner. Date of hearing : 12-5-1984, ORDER Pehalwan complainant filed this revision against the acquittal of Ahmad Khan and six others from the charge under section 447/148 P.P.C. by order dated 13-5-1972, passed by learned Sessions Judge, Jhang. 2. The prosecution case was that there was consolidation of land holdings in village Cbauri Moon, District Jhang about twelve years before the registration of the case. 5/6 years after the above consolidation, there was consolidation of land holdings'in village Bela Bangash. It was alleged that the land in village Chauri Moon was allotted to Mian Ghulam Haider. During the consolidation proceedings of village Bela Bangash, it transpired that the demarcation of the two villages, namely t Chauri Moon and Bela Bangash had not been correctly done. The accused Ahmad Khan etc., therefore, challenged the proceedings before Consolidation Authorities as a result of which the learned Additional Commissioner (Consolidation) directed that demarcation of boundaries of five villages including the two mentioned above should be undertaken afresh. It is alleged by the prosecution that without waiting the result of the demarcation, the accused Ahmad Khan etc. forcibly entered in possession of the land belonging to Mian Ghulam Haider and given to him in consolidation of land holdings of village Cbauri Moon. The accused were convicted by the Ilaqa Magistrate under section 447 P. P. C. vide order dated 31-5-1971. This order was not set aside in appeal and the case was remanded where­ after Rao Muhammad Yar, Magistrate by order dated 13-12-1971 again convicted them under section 447 P. P. C. and sentenced them to three months R. I. and a fine of Rs. 100/- or in default one month R. I, Ahmad Khau elL. again lilcd appeal which was accepted and they were acquitted by the learned Sessions Judge, Jhaiig on 13-5-1972. Hence this revision. 3. I have gone through the interim orders of this case. The record was summoned by this Court in this revision on 20-11-1979. This petition was listed on 30-10-1973, but the learned counsel Ch. Mohammad Sadiq, Advocate wanted to further study the case and sought adjournment. The case was ordered to be listed on 15-11-1973 but it appears that this order was not complied with by the office and the petition was listed for hearing on 30-1-1974 instead of 15-11-1973. No one was, present on that date. It was, therefore, adjourned. It was again listed on 28-2-1974 but again no one wa> present. It appears that the petitioner or his counsel did not take any interest in the petition for about ten years. This petition was, therefore, listed on 28-3-1984, but again adjourned to be relisted on 25-4-1984. On that date it was ordered to be placed before the Hon'ble Chief Justice who was pleased to order on 7-5-1984 that it be placed before me. 4. I have gone through the record of this case. Learned counsel for the petitioner has not been able to point out any illegality or infirmity in the impugned judgment which is based on proper appraisal of the oral as well as documentary evidence on record. It is conceded by the learned counsel that there is no misreading of evidence by learned Sessions Judge. This re vision petition which has been listed for disposal after about twelve years of the passing of the impugned order, has no merit. Even otherwise, the revisioual jurisdiction is to be exercised sparingly and solely in a case which involves misreading of evidence or in a case in which the Court conies to a conclusion that material injustice has been caused by acquittal of the accused. 1 find that no material injustice has been done to the complainant who remained negligent in prosecution of his case in this Court. 5. The result is that there is no merit in this revision which is dis­ missed in limine. (TQM) Petition dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Peshawar ) 305 Present : FAIZ MUHAMMD KHAN, J GHULAM HAZRAT and Another—Petitioners versus THE STATE—Respondent Criminal Appeal No. 124/83 ; decided on 24-3-1984. (i) Customs Act (IV of 1969) — —S. 156 (1) (8) & (89) — Smuggling—Offence of—Conviction for— Cleaner of bus exonerating other accused (driver) in taking entire burden of committing offence upon himself—Held : Mere fact of coaccused having taken upon himself entire burden of committing offence not to absolve other accused from liability under law nor such device even to raise suspicion regarding such other accused. being not in conscious possession of contraband items recovered from secret cavities of bus driver by him, fP, 3Q9]C (H) Cnstoms Act (IV of 1969)-

Ss. 156 (1) (8)& (89)—Smuggling of contraband item—Offence of—Conviction for — Challenge to — Evidence — Appraisal of—­ Accused - Appellants failing to discharge burden of proof re­ garding lawful possession of contraband opium recovered from secret cavities of Bus, being driven and controlld by them—One co-accused, cleaner of Bus, taking upon himself entire burden of committing offence and exonerating other eo-accused, Bus driver— Circumstantial evidence supporing prosecution case against appel­ lant No. 1 (Bus driver)—Appellant No. 1, held, rightly convicted by trial Judge for offence — Conviction of both accused-appellants maintained in circumstances, [P. 309 ]A, B, C &, D 1978 Pak. Cr. L. J. 593 & 1978 SCMR 244 not applicable. (iii) Customs Act (IV of 1969)—

S. 156 (1) 1,8) & (89)—Smuggling of contraband item — Offence of-Sentence Mitigation, plea for—Huge quantity of contraband opium (1004 Kgs.) recovered from conscious possession of both accused-appellants — Held : Sentence awarded to call for no interference. [P. 309]£ Qazi Talifo Mohyuddin, Advocate for Appellants. Mr. Raza A. Khan, Deputy Attorney General for State. Date of hearing : 29-2-1984. JUDGMENT Ghulam Hazrat and Khan Wazir stood trial in the Court of Special Judge (Central), Customs and Taxation, N.-W. F. P. on a charge under clauses (8) and (89) of section 156 (1) of the Customs Act, 1969. They were allegedly smuggling 1004 K, Gs. of contraband opium. 2. At the trial when both the accused were charged, Khan Wazir accused pleaded guilty to the charge but Ghulam Hazrat accused did not plead guilty and claimed trial. On the conclusion of the trial, the learned Special Judge, finding both the accused guilty of committing the offence, convicted aod sentenced both of th -m to suffer R. I. for four years and a fine of Rs. l.OO.OOO/- (Rs. one hundred thousand) each, or in default to sutfer R. I. for one and a half year. The accused were, however, given the benefit of section 382, Cr. P. C. 3. Against their conviction and sentence both the accused have appealed. 4. The prosecution case at the trial was that on 5/4/1983 Customs Mobile Squad, Nowshera was on routine checking of vehicular traffic plying on G. T. Road . At about 0960 hours, Mr. Arif Durrani, Inspector, Customs Mobile Squad intercepted Bua No. TRP-794 (KL-4281) driven by Ghulam Hazrat, accused-appellant. Khan Wazir accusedappellant, was elearner of the Bus. The search of the Bus led the detection of some secret cavities containing narcotics. Since on the spot there were no arrangements to open up the secret cavities specially designed to carry the narcotics^ the Bus was driven and both the accused brought to the office of the Customs Mobile Squad at Nowshera, where cavities were opened and thorough search was mBde which led to the recovery of 1004 K, Gs of contraband oni»r»«, Since the accused could not pro­ duce documents to show lawtlrrpossession of the contraband opium, they were arrested and the contraband opium alongwith the Bus takers into possession by the Mobile Squad. Representative samples were taken from the seized opium for chemical examination. After completion of the formalities, the Incident Report Ex, PA/1 was drafted by Haji Mir Ahmad Khan (P. W ) and sent to Police Statjon, Akora Khattak for registration of the case, which was accordingly registered vide F.I.R Ez. P. A. On the conclusion of the investigation, both the accused were sent up to the Court of the learned Special Judge where they were tried, convicted and sentenced as aforesaid. 5. In order to prove its case, the prosecution produced at the trial Haji Mir Ahmad (P. W. 1), Mr. Arif Durrani (P. W. 2), Mr. Wazir Ah (P W, 3) and Mr. Ghulam Asghar (P. W. 4) as prosecution witnesses. It ha: come in the statement of Haji Mir Ahmad (P. W, 1), Mr. Arif Durrani fP, W. 2) and Mr. Wazir Ali (P. W, 3) that the Bus which at the relevant time was being driven by Ghulam Hazrat, accused appellant, was intercepted by Mr. Arif Durrani (P. W. 2) on G. T. Road, Khan Wazir, accused-appellant, was also found travelling in the Bus as Cleaner thereof. On search the Bus was found having secret cavities containing opium It was accordingly driven to the office of the Customs Mobile Squad at Nowshera where the secret cavities were opened and contraband opium weighing 1004 K. Gs. was recovered from those cavities. This opium was taken into possession vide recovery memo. Ex. P, W 1/1 by Haji Mir Ahmad (P. W. i)- Notice Ex. P. W 2/1 under section 171 of the Customs Act. 1969 was also served on the accused-appellants. Samples from the seized opium were taken which were sent to the Laboratory for test and vide report Ex. P. W. 1/5 it was found to be opium. The statements given at the trial by Mr. Arif Durrani (P. W. 2) 5 Mr. Wazir Ah (P. W 3) and Mr. Ghulam Asghar (P. W. 4) vent totally un-questioned and no material question was taken from Haji Mir Ahmad (P, W. 1). The recovery of the contraband opium from the Bus driven by Ghulam Hazrat, of which Khan Wazir was cleaner, was not denied by both the accu-ed-appellants in their examination under section 342 Cr. P C. Khan Wazir, accused-appellant, not only pleaded guilty to the charge but in his said statement also accepted the entire responsibility of even having the knowledge that the contraband opium was placed in the secret cavities of the Bus. He. in that statement, tried to exponerate his co-accused Ghulam Hazrat by stating that he had no knowledge of the secret cavities of the Bus, nor of the fact that the contraband opium has been placed therein. Ghulam Hazrat, accused-appellant, in his examination under section 342 Cr. P. C. denied having knowledge of the secret cavities of the Bus and of the contraband opium. He, however, admitted that at the relevant time he was driving Bus No. TRP-794 (KL-4281) which was intercepted by the Customs Mobile Squad, Nowshera. He also admitted that Khan Wazir was with him as cleaner. He further stated that the permanent driver of the Bus was Nishan Gul and since he was on leave on the relevant day, he (Ghulam Hazrat) had been temporarily engaged to drive the Bus and in that respect request had been made to him by Khan Wazir, the cleaner of the Bus, at the instance of Haji Gul Muhammad, the owner of the Bus. The learned trial Judg?, however, did not accept the explanation given by Ghnlam Hazrat. accused-appellant, and he, relying on the prosecution evidence furnished at the" trial, convicted and .entenced both the accused-appellant to the term already mentioned. 6. Qazi Talib Mohyuddin, Advocate appeared on behalf of the accused-appellants and Mr. Raza A. Khan, Deputy Attorney General, appeared on behalf of the State. Their arguments were heard and the record perused. 7. The learned counsel for the accused-appellants did not challenge the conviction of Khan Wazir, accused-appellant, because of the reason that he had not only pleaded guilty to the charge but had also confessed his guilt while biing examined under section 342 Cr. P. C. The learned counsel, however, submitted that the sentence awarded to him was immoderate and may be reduced. 8. As respects Ghulam Hazrat, accused-appellant the contention of his learned counsel was that in such like cases the burden always lies on the prosecution to prove that at the relevant time the accused was in con­ scious possession of the contraband goods. He argued that in this case the prosecution had failed to prove at the trial that Ghulam Hazrat, accused-appellant, was iu conscious possession of the opium which was recovered by the Customs Mobile Squad from the secret cavities of the Bus. For this reason, the learned counsel urged, Ghulam Hazrat merited acquittal and was wrongly convicted by the learned trial Judge. In support of his arguments the learned counsel relied on 197.8 P. Cr. L. J. 593 and 1978 S.C.M.R. 244. The learned counsel further contended that Khan Wazir, accused-appellant, alone had the knowledge of the secret cavities of the Bus and the fact that in them %vas placed the contraband opium which was recovered by the Customs Mobile Squad. He contended that the examination of Khan Wazir under section 342 Cr. P. C. fully exonerated Gbulam Hazrat, accused-appellant, from the offence and that his conviction may, therefore, be set aside. 9. The learned Deputy Attorney General argued that Ghulam Hazrat, accused-appellant, was equally responsible for the offence as was Khan Wazir and that both of them were in conscious possession of the contraband opium when the Bus was intercepted by the Customs Mobile Squad. Hfc further argued that the statement of one co-accused would not exonerate the other co-accused from the offence on the evidence led at the trial the charge stands proved against him. He contended that on the basis of evidence produced at the trial the conviction of the accusedappellants was well founded and so was the sentence awarded to them. He argued that the authorities cited by the learned counsel for the accused-appellant were of no avail to the accused-appellants. 10. It has come in the prosecution evidence, not even denied by Gbulam Hazrat, accused-appellant, in his examination under section 342 Cr. P. C., that the Bus carrying the contraband opium at the relevant time being driven by Ghulam Hazrat. The driver of the Bus always full control of the Bus and for that reason he would certainly know what is contained in the secret cavities of the Bus. Tn cause of this nature the offenders take all possible prosecution to hide their crime. The contra­ band items are secretally placed in the cavities designed for the purpose and only the persons who has to deliver such goods at the receiving and knows where such goods have been .placed in the vehicle, Such a person can only be the driver of the vehicle who has to drive the vehicle upto the receiving end. There was, therefore, no escape from the conclusion that woile driving the Bus Ghulam Hazrat, accused-appellant, was in conscious possession of the contraband opium. In such circumstances, in view oft the language employed in item (89) of section 156 (1) of the Customs Act,L to establish the lawful excuse for such possession was his burden, which hej totally failed to .discharge. The defence story was that the permanent! driver of the Bus was Nishan Gul who on the relevant day was on leave and for that reason the services of Ghulam Hazrat were borrowed by the owner of the Bus through Khan Wazir for that day alone. Nishanl Gul svas, however, neither produced in defence nor was any explanation]., given as to why he could not be produced at the trial. The defence story,1 being not worthy of reliance, was rightly disbelieved by the learned trial Judge. The mere fact that one co-accused took upon himself the entire! burden of committing the offence would not absolve the other co-accused],-, from the liability under law, nor would such device even raise a suspicion] that the other co-accused was not in conscious possession of the contraband' item recovered from the secret cavities of the Bus which he was driving./ The circumstantial evidence, therefore supported the prosecution caseL against Ghulam Hazrat, accused-appellant. He was. therefore, rightly] convicted bv the learned trial Judge for the offence. The authorities cited' by the learned coupsel for the accused-appellant do not lend support to Ghulam Hazrat's case. Both these authorities relate to same case and in my view support the prosecution case because the conviction of the driver of the truck was in that case maintained upto the Supreme Court. The conviction of the accused-appellants is, therefore, maintained, 11. As to the sentence awarded to the accused-appellants. I do nod think it is severe. Huge quantity of contraband opium was recovered], from the conscious possession of both the accused-appellants and in the] circumstances even the sentence awarded to them calls for no inter-' ference. 12. There is no merit in this appeal, which is hereby dismissed. (Aq. By.) Appeal dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Quetta ) 309 Present : ZAKAULLAH LODI , ACJ SHAMAN and 2 Others—Petitioners \ersux THE STATE—Respondent Crinrtnal Bail Application No. 37 of 1984, decided on 29-5-1984. Criminal Procedure Code (V of 1898) Si. 497 & 498 read with Pakistan Peual Code (XLV of I860)— S. 302/34—Bail—Grant of—Deceased snccumblmg to injuries caused by hatchet blows by all six applicants—Definite role attributed to petitioners in promptly lodged FIR—Version disclosed by com­ plainant also fully supported by post mortem report—Held ^-~ There being nothing conceivable on record in support of plea of past enmity, sudden light and aggression by deceased or complainant, application for grant of bail (at present stage) to have no merit. [P. 3ll]A & B PLJ 1978 SC40! : 1979 P Cr. L .1 147 & 1980 P Cr, L J 624 dis­ tinguished. Mr. Tahir Muhammad, Khan Advocate tor Applicants, Mr, Muhammad Nawaz Ahmad, Advocate on behalf of A.G. for State, Date of hearing : 26-5-1984. ORDER This bail application arises out of the following facts:-- 1, An Jr. I. R. was lodged on 25th October, 1983 at Thanu Bagbtail, Tehsil Naseerabad, by Abdul Nabi who stated that he aiongwiih Khuda Bakhsh, Rub Rakha and Karim Dad was digging water course at abaut tla. m. when Raza Muhammad alias Raz/o, Muhabbat, Niaz Muhammad Thamlwani Jamaii by caste and the applicants herein, who are Jagerani by caste arrived at the scene and started diverting the water course. They were asked by the complainant and the deceased not to do so but they wore not restrained. InsteaJ they attacked the deceased and the complainant. The cornolianant succeeded in escaping from the "Vardat while Khuda Bakhsh was given hatchet blows by all the six accus­ ed Latter", Khuda Bakhsh succumbed to the injuries. The report was lodged immediately after the occurrence and the accused were arrested. 2. The challan against the applicants and the other co-accused has already been put up to the trial court but proceedings have not started as, on the question of bail, raised first before the Additional Sessions Judge, Usta Muhammad and then before this Court, the file of the case has been travelling from one court to another. 3. Mr. Tahir Muhammad Khan, learned counsel for the applicants submitted that there was a back ground of enemity between the parties as one of the accused persons had bean injured by the complainant party about ten months bjfore the present incident, and a criminal case is pending to that effect. Hu: also urged that it was a suddsn fig'it and the co m plainant and the deceased were, in fact, the aggressors and a complainhas been submitted by the co-accused Raza Muhammad against the com­ plainant in this cise, in which, among others, it has been alleged that in this quarrel one Sohbat Khan had been assaulted by the complainant party and he lost his left arm. Admittedly this complaint has been filep much after the present incident. Anyway, irrespective of the merits or de-merits of this complaint, and without going into the details of the previous enmity, which would naturally be pleaded in their defence by the applicants and the co-accused; what comes out clearly from thet facts as dis-closed by the F. I. R. and other documents, is that six persons (including the applicants) attacked Abdul Nabi and the deceased and that there was no other person present at that time besides these two. It would be a different matter if at trials same different story comes out, According !u the Post Mortem report, the deceased sustained ten ,£n?vou r - ;niurie> caused by hatchet. Larger number of these injuries veie sufficient to cause death, Morco e ;he \ 1, R. does not disclose that Sohbat Khan was attack­ ed by riic de-vea=ed or that the quarrel was initiated by the complainant and the dccer.sed, It will be noted lhat as against six persons, they were onh :v,; \gam even if it is turned out to be a case of sudden quarrel, long tern, jt punishment would fall to the applicant's share; though the\ rna> escape death penalty. Presently, the only version before me is the one disclosed by the F I R.and the same is fully supported by the Post Mnrtetn report. These documents make out a strong case agamM she .ippJicants and the co-accused, 4 Mr Tahir Muhammad Khan relied upon Barkat Ali and others v, The State { <97y P. Cr. L. J. 147) and Manzoor Ahamed >. The State (IVSO P Cr L. J page-624) to support his contention that there was sufficient scope of further enquiry into the case and, therefore, the applicants deserved bail. In the first mentioned case, no specific part had been assign­ ed to the applicant for bail in the F 1 R. and the cross case filed by him was under investigation and the complainant was found to have suppress­ ed matenui fact of the pendency of the cross case against him and the injuries allegedly suffered by the applicant at his hand. The bail was allowed in such circumstances. In the next case, the applicant for bail was attributed with the act of only grappling with the deceased; but it was subsequent to the receipt of fatal blow by the deceased. It was thus appreciated that the question of his sharing common intention with the accused actually giving fatal blows required further enquiry and so. the bail was allowed. The difference between the facts of this case and the cases cited, can well be seen. He also relied upon Muhammad Shafi i. Hakam Ali and 7 others (PLJ 1978 SC 401). In this case also, the principle of bail under Section 49/ Cr. P. C. on the basis of scope of further enquiry into the guilt of the accused was considered. The facts of this case were that six persons on the complainant side and two persons from the accused side received injuries in a sudden fight and it could not be acurately ascertained as to which side was aggressor; as such, concession of bail was allowed to the accused. All the cases cited above, a.riese out of very different sets of circumstances, than the facts giving rise to the present case, in which (i) the F. I. R. names the applicants, (ii) it attributes a definite role to them, (iii) it stands corroborated by tha Post Mortem report and (iv) it attributes no role, whatsoever, as aggressor or initiator of the quarrel to the deceased or the complainant. 5. It may be possible that while defending the case, the applicants may be able to successfully set-up the theory of past enmity, sudden fight and aggression by the deceased or the complainant, but at present, no such thing is conceivable on the basis of the record. It would, therefore, only be proper for the applicants to let some evidence come on tecord of the trial court and then make a move for bail, if circumstances so justi­ fied. This application has no merits and is hereby dismissed. TQM Bail disallowed

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 312 [DBj Present : GHULAM MUJADDID MIRZA & IJAZ NISAR, JJ JABER—Appellant versus THE STATE-Respondent Criminal Appeal No. 512 of 1981, decided on 6-2-1984. Pakistan Penal Code (XLV of 1860)- —Ss. 302 & 323—Murder, offence of — Evidence, appreciation of— Acquittal, basis for—Both parties admittedly having strained re­ lations—Injured P. we. closely related with deceased--P.Ws. named in FIR as eye-witnesses, not produced or examined—FIR recorded at spot—P. W. against whom accused allegedly having grudge, not seriously assaulted—Recovery witnesses not appearing to be com­ pletely disinterested persons — Dis-mterested persons of locality though available, poheiiot taking them as witnesses— Place of re­ covery open and accessible — Recoveries effected 10 days after occurrence — not providing any corroboration or support to ocular testimony—Prosecution, held, failed to bringi home guilt to appellants beyonu reasonable doubt. ]Pp. 3i5 & 316J/4, B, C & D Mr. Aitzaz Ahsau, Advocate for Appellant. Mr. Ehsau Lilla, Advocate for State. Mr. Muhammad Anwar Ahmad Khan, Advocate for Complainant. Dates of hearing : 4 & 6,2-1984. JUDGMENT Ijaz Nisar, J.—Foqir Hussain son of Akbar (32) and Jaber son of Ghulam Fand (30) Degars by caste, resident of Chak No. 12 Gobind Garh, Police Station Khanqah Dogran, District Sheikhupura were tried alongwith eight others (since acquitted) by the learned Additional Sessions Judge, Sheikhupura for committing the murder of Faqir Hussain deceased and tor murderously assaulting Mohammad Naveed, Hamid Ah, Muhammad Rafiq Mohammad Boota and Asnraf P. Ws. with daggers, Takwas and Solas on 1-2-1980 at 9/10 a.m. and have been convicted and sentenced on 9-9-1961 as follows : Faqir Hussain Convicted under section 323 P. P. C. and sentenced to R. I. for 6 months. Jaber (a) convicted under section 302 P.P.C. and sentenced to death and a fine of Rs. 5.000/- or in default to under­go further R, I. for 2 years. Half of the fine, if recovered, was to be paid to the heirs of the deceased. (6) convicted under section 324 P, P. C. and sentenced to one year R. I. The cog ^ici-sd accused have filed separate appeals which alongwith murder reference and the revision filed by Muhammad Nav&ed for setting aside the acquittal of the co-accused of the appellants shail be disposed of by this order. 2. The prosecution case is that on 14-11-1979 Jaber and Faqir Hussan appellants aiongwith others assaalted Muhammad Rafiq (P. W. 11) and others for not voting for Haji Fateh Muhammad in the Local Bodies Election. A case under section 30? P, P. C, was registered against the accused party. Muhammad RaSq P. W. 11 was a witness in the said cast The accused party pressurized Faqiq Hussain deceased father of Muhammad Rafiq P. W. to prevail upon the latter so as to refrain from appearing as a witness against them to which the deceased did not agree. Two days prior to the occurrence i.e., 29-1-1980 Nazir Hussain son of the deceased was man-handled by Jaber appellant and his brother. The deceased complained to Ghulam Farid and Mubarak (since acquitted) but they refused to take any notice of the same. 3. On the day of occurrence i.e., 1-2-1980 at 9-10 A. M. Muhammad Naveed P. W. 10 and his father, Faqir Hussain deceased were returning to their village after irrigating their land. When they reached near the village pond, Jaber appellant, Aslam, Mubarak and Ashiq (since acquitted) armed with daggers, Faqir Hussain appellant, Sanawar (since acquitted) armed with Takwas Riasat, Riaz and Farid (since acquitted) armed with sotas and Rashid (since acquitted) armed with a gun suddenly emerged from behind Kikar trees and attacked the complainant party with their respective weapons. Faqir Hussain gave a Takwa blow to Muhammad Naveed P. W. on his head, Jaber appellant gave a Khanjar blow on his left arm, Sanawar gave a Takwa blow on his left thumb while Riaz and Riasat caused sota blows to him, Sanawar gave a Takwa blow to Faqir Hussain deceased on his shoulder, Jaber appellant gave a Khanjar blow on the left side on the back of his shoulder. Ashiq gave a Khanjar blow on the back of the left shoulder of the deceased while Aslam gave a dagger on his back. The deceased fell down. Mubarak gave injuries to the deceased on his chsst and left shoulder. Oo hearing the aiarm of the deceased Muhammad Naveed P. W. 10 and Muhammad Rafiq P, W. 11 (sons of the deceased), Muhammad Boota P. W. 12, nephew of the deceased, Ashraf and Hamid (not produced) arrived at the spot. Muhammad Rafiq and Muhammad Boota P. Ws. were also injured by the appellants and their companions. Rashid accused (since acquitted) continued firing during the course of occurrence to scare away the P. Ws. but no ody was hurt. The accused fled away after the occurrence with their respective weapons. The deceased died at the spot. Muhammad Younus A. S. I. reached the spot on learning about the occurrence and recorded the statement Exh. P.A. of Muhammad Naveed P. W. 10 at 11 A.M. oa 1-2-1980, on the basis of which the formal F.f.R. Exh. PA/1 was recorded. 4. The A. SI., prepared the inquest report P. N. and the injury state­ ment P. O, of the deceased and arrested the accused. Jaber appellant led to the recovery of dagger P. 6 through memo. Exh. PF on 11-2-1980. Qa the same day, Faqir J-?ussajn. appellant fed to the recovery of Takw$ P. 7 from his residential KofAfl through memo Exh. P.O. Sanawar, Aslam and Ashiq accused got recovered dangs P. 8, P. 9 and P. 10 respectively through raemos. Exh. P O., P R. and P.S. Mubarak accused led to the recovery of gun P. 5 through memo. Exh. P.O. The dagger recovered from Jabar and Takwa recovered from Faqir appellant were found to be stained with human blood by the Serologist, vide his report Exh P.U. Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 attested the recovery memos. S. I. Zafraullah Khan got prepared the site plan Ex. P.C. and P.C./l. 5. Dr. Manzoor Hussain Kazmi who performed the post-mortem on the d«ad body of Faqir Muhammad deceased could not be examined per­ sonally as he was reported to have left for Iraq . Secondly evidence was led to prove the post-mortem report Exh. P.H. and the diagram Exh. PH/1 of the injuries. Similarly secondary evidence was led to prove the medico legal reports Exhs. P J., P K. and P.L. of Muhammad Naveed P. W. 10, Hamid Ali (not produced) and Muhammad Rafiq P.W. 11 respectively as Dr. Khalid Yazdani who had examined them was reported to have left for Iran . 6. According to the post-mortem report the following injuries were found on the dead body of Faqir Hussain deceased : An incised wound 3 cm. x 0.5 cm. x 1cm. on the back of left shoulder, A stab wound 3 cm. x 1/2 cm x deep to the cavity of the chest situated on the right of the middle line in between the two shoulders weapon travelled and injured the middle lobe of the left lung 1 cm x 0.5 cm x 0.5 cm. A stab wound 3 cm. x 0.5 cm. x deep to the cavity of the abdomen on the back of the left flank middle part weapon went deep in the cavity and injured the left kidney 0.5 cm. x 0.3 cm. x 0.6 cm. on the lower pole. An incised wound 3.5 cm. x 1 cm. x deep to the bone on the back of right shoulder middle region. An incised wound 3.5 cm. x 1.5 cm. x skin deep on the front of the top of left shoulder. A stab wound 3 cm. x 1 cm. x deep to the cavity of the chest on the front and left side 4 cm. below the outer end of left clavicle. A stab 4.5 cm. x 2.5cm. x deep to the cavity of the chest in front and on the left side 3 cm. below the middle or left clavicle weapon went deep in the cavity of the chest and injured the upper lobe of the lung 1.5 cm. x 0.5 cm. x 1 cm. An incised cut linear 1.5 cm. long on the right cheek. Injuries Nos. 2, 3 and 7 were individually and collectively fatal. Death occurred due to severe shock and haemorrhage. All the injuries were ante mortem and were caused by sharp edged weapon, The probable time between injuries and death was 14 to 3 hours and that between death and post-mortem examination 24 hours. 7. Jaber and Faqir Hussain appellants and the acquitted accused pleaded not guilty to the charge and denied the prosecution allegations. They stated that they had been falsely involved. No evidence was led in defence. 8. The prosecution examined Muhammad Naveed P.W. 10 Muhammad Rafiq P. W. 11 and Muhammad Boota P. W. 12 to prove the occurrence. All of them are injured and they deposed about the motive and the occurrence. Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 were examined to prove the recoveries from the appellants and the acquitted accused 9. The learned trial Court observed that the eye-witnesses were interested and inimical against the accused and considered it unsafe to act upon their testimony unless corroborated by some other circumstance. In its opinion the required corroboration was forth-coming so far as Jaber and Faqir Hussain appellants were concerned from the evidence of Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 the recovery witnesses and for this reason convicted them only and acquitted the rest of the eight accused. 10. Learned counsel for the appellants has assailed the convictions of the appellants on the grounds that the evidence admittedly is of interested nature, the F.I.R. having been recorded at the spot was the result of mutual deliberations and consultations. The recovery witnesses are inimically disposed owards the appellants and there mas no mis-match or distinction between the acquitted accused and the appellants so far as the ocular testimony and the evidence of the recoveries is concerned, and lastly that the eye-witnesses having been disbelieved against the majority of the accused should not have been believed against the ap­ pellants without any independent corroboration. 11. Muhammad Naveed and Muhammnd Rafiq P. Ws. are sons of the deceased while Muhammad Boota P. W. is a nephew of the deceased. Admittedly, the relations between the parties were strained. Ashrafand Hamid named as eye-witnesses in the F. I. R. have not been examined The F. I. R. was recorded at the spot. Muhammad Rafiq P. W. againstj whom the accused are said to be bearing a grudge was not seriously assaulted. A conusion and painful swelling was found on his person. Rashid, the acquitted accused, who was said to be carrying a gun would not have kept behind by just firing in the air if he had shared the common intention/object with the other accused in committing the murder of Faqir Hussain deceased. Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 the recovery witnesses who have been held to be an independent person by the trial Court and are said to have corroborated eye-witneeses do not appear to be completely disinterested persons. Muhammad Bashir P. W. admitted in cross-examination that there was various groups in B their village and that he was affiliated with the complainant party. He further admitted that other disinterested persons also lived there but the police did not associate any of them. Furthermore, be admitted that the kur of Ghulam Farid (since acquitted) father of Jaber appellant fromvhere the dagger P. 6 was recovered was lying open. Likewise, Muhammad Joota P. W. 7 admitted that Aslam acquitted accused a relative of the appellants was chailaned for stealing earrings of his brother's wife and ater on acquitted. He too admitted that some disinterested and respectable crsons lived in their village. In the cross-examination, he stated that the haveli from where dagger P. 6 was recovered was lying open and isolated. |He further admitted that other sons of Ghnlam Farid (acquitted accused) ilso lived in the said Haveli. The recoveries were effected 10 days after the occurrence. The ap­ pellants were not likely to have kept the weapons of offence in their louses for such a long period when they could have easily destroyed or iisposcd them away. For the above reasons, we do not think that the recoveries provide any corroboration or support to the ocular testimony. "n consequence, we hold that the prosecution has failed to bring home he guilt to the appellants beyond all reasonable doubt. Accordingly, we iccept their appeal, set aside their convictions and sentences and acquit hem of the charges. Jabcr appellant shall be set at liberty forthwith, if lot required in any other case. Faqir Hussain appellant who is on bail is discharged from the bail bonds. The revision stands dismissed. The death sentence of Jaber appellant is not confirmed. (Aq. By.) Appeal accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 316 Present : Z, C. VALLAN1, J FURQAN HYDER alias TAJ— Appellant Versus THE STATE— Respondent Cr. Appl. No. 58 of 1983, Sukkur'Cr. Appl. No. 113/1983, Karachi , decided on 19-2-1984. (i) Criminal Trial- — -Two versions of incident—Held : When two versions of incident be before Court, one in favour of appellant ought to be accepted. IP. PLD 1959 SC 480 rei. (it) Pakistan Penal Code (XLV of 1860)- -- Ss, 302 & 304 (1) — Murder— Offence of — Grave and sudden provocation—Effect of— Conviction under S. 302— Alteration of that under S. 304 (1)— Evidence, appreciation of— Appellant killing his wife due to sudden provocation on finding her in objectionable and naked condition and some one running out of her room — Held : Appellant having committed murder out of "Ghariat" conviction under S. 302 P.P.C. to be altered to that under S. 304 (1) P.P.C. and sentence to be reduced to 8 years, fP. 320]£ PLD 1959 SC 480 ; PLD 1963 Kar. 684 & PLD 1964 Kar. 264 ref. Mr. Azizullah Sheikh, Advocate for Appellant. Agha Ghulam AH, Advocate for Respondent. Date of hearing ; 12-2-1984 JUDGMENT Appellant above named, being aggrieved by judgment dated 27-8-1983 01 the learned Sessioos Judge, Khairpur, in Sessions Case No. 13-14/82 by wuich appellants have been convicted under section 302 P P. C and inlS Ce fl 1° SU ?' i m P[ ison ® ent for 1'fe ^,d to pay fine of Rs. 10, 000/-or n default to suffer turtherR.L for 3 years and also convicted under section 324 P.P.c. for causing knife injuries to P. W. Riaz Hyder and Sion iVpI F nV' for] y ear and als °has been convicted under section 13-E Arms Ordinance and sentenced to suffer R- I. for one year, has preferred the above appeal on the following facts and grounds. Hn«?" ! c° th » ° f Januar

'', I982 one Naz ar Muhammad son of Tajjamual Hussam Syed resident of Bhugari, Khairpur appeared at Police Station Kha.rpur town and lodged his report about the murdsr of his niece Mst Sajada Parveen. According to this report, Mst. Sajda Parveen niece or complainant, was married to Furqan Hyder alias Taj s/o Hyder 5w a hP ' - r; ° Bh T gri about four ^ ears a 8°> Mst - Sajda Parveen, alter her marriage used to reside in the house of her husband in Bhurgari thl vp'nf u k j ^t d 8lVen birth to one dau gnter, namely Saima from the wedlock about U years ago. It is further stated in the report, that appellant Furqan Hyder used to reside within one compound with his brothers Khaqan Hyder, Ri zvan Hyder and Ali Shaan Hyder, but in separte nouses. It is also mentioned in the report, that appellant used to quarrel with his wife Mst. Sajda Parveen on domestic affairs and also used to com 3-11 her to give him money so much so, that the niece of complainant sold the ornaments of her marriage and given money to her husband. The appellant spent all this money mostly for intoxication purpose. It is further mentioned in the report, that before the incident, turqan Hyder quarrelled many times with his wife and Zahir Hassan, brother of complainant and father of Mst. Sajda Parveen asked Furqan ttyder a many times to mend his ways but to no effect. At last Zahir Hassan made applications to the higher authorities. Complainant further stated that he resided near the house of Furqan Hyder. On the night ' ncide , n £.at about 12.30 a.m. (night) the complainant alongwith his nephew Zahir Hussam was sleeping in the Otaq, when they heard cries from the house of Furqan Hyder and they both went running towards the cries. Rizvan and Khaqan also came running from their houses. They ail saw that Furqan Hyder was giving blows to his wife Mst. Sajda Parveen with a knite (chhurri) who was raising cries of "Khoon Khoon" Rizvan Hyder tried to rescue Mst. Sajda but, he was also given blows and challeng­ ed not to come near him. Then Furqan, within their sight, after committ­ing murder of his wife Mst. Sajda, ran away out of the house alongwith blood stained knife (chhurri). The complainant then sent his nephew Zahid Hussain towards Tando Masti side to bring his father and leaving other persons on the dead body, came to the police station for report. The report of the complainant was reduced to writing by Mr. Nazir ilussain Awan, Additional S H. O. Khairpur on 10-1-1982 at 1-30 am. (night) and after reading it over to the complainant, obtained his signature. This police officer then took up the investigation and was about to proceed towards Vardat for investigation, when Furqan Hyder appeared at the Police Station with blood stained clothes (Shalwar and shirt) on his person and one blood stained dagger in his hand and so this Investigation Officer arrested appellant in presence of P. C. Nazir AH and P. C. Ghulam Hyder and also secured dagger and clothes from his possession and person and prepared Mashir nama to this effect. The incriminating articles were then sealed by the Investigation Officer in separate parcels in presence of the same mashirs. This investigation Officer then proceeded to the Vardat and reached there at about 2-30 am. He found injured Razvan Hyder at the Vardat with injuries on his person and so prepared memo of injuries in presence of mashirs Muhammad Amin and Hassan Raza. He then referred Rizvao Hyder to the Civil Hospital Khairpur, alongwith a letter for examination, treatment, and certificate Ha saw the Vardat at about 6-30 am. (in the morning) and found the dead body of Mst. Parveen there. He then prepared in quest report of the dead body in presence of the same mashirs and also prepared memo of Vardat. The dead body was having one silken red colour shirt and one silken red colour Shalwar on her person. He then sent the dead body to the Civil Hjspital, Khairpur through P. C. Nadir Ali for post mortem examination and report. He then examined Khaqan Hyder, Zahir Hussain, Zahid Hassain and then returned back to the Police Station. This Investigation Officer had also recorded the statements of Rizvan Hyder when he first visited the Vardat on 11-1-1982 he registered a case u/s 13-D of Arms Ordinance against the appellant acting himself as complainant on behalf of the State as the dagger (cnhurri) secured from tne possession of appellant was having a blade of more length than the permissible one. He then got the confession of appellant recorded from Honorary First Class Magi-trate Khairpur on 12-1-1982. The dagger, clothes etc. were also sent to the Chemical Examiner for examination and report. He then handed over the case papers to the S. H. O. Khairpur town, who finally submitted challan against the appellant separately u/s 302/ 324 P. P. C. and 13-D Arms Ordinance. After receipt of the challans by this Court, a joint charge u/s 302/324 and 13-D Arms Ordinance was framed and read over the appellant on 21-3-1983 as both the cases were amalgamted on application EX. 1 of learned D. P. P. Since the appellant pleaded not guilty and professed his innocence, he was put to trial. At the trial, the prosecution examined complainant Nazar Muhammad as EX. 8 who produced his F. I. R. as EX. 8-A, and P. was Zahid Hussain EX, 9, Rizvan Hyder EX. 10, and who produced a list of articles as EX. 10-A and KhaqanHyderEX.il as witnesses of occurrence. Zahir Hussain EX. 12, Mr. Ghulam Kadir, Honorary Magistrate, Khairpur as EX. 13, who brought on record the confessional statement of appellant as EX. 13-A. Dr. Rasoo 1 Bux Medical Officer EX. 11, who produced copy of letter received by him from S. H. O. shown as EX. 14-A and post mortem notes of the dead body of Mst. Sajda Parveen as EX. 14-B. Muhammad Zain EX. 16 and who brought on record the inqeust report of the dead body of Mst. Sajda Parveen as EX. 16-A memo of scene of offence as EX. 16-B and memo of injuries on the person of P. W. Rizwan Hyder as EX. 16-C Ghulam Mustafa Tapedar f X. 17 who produced sketch of scene of occurrence as EX. 17-A A. H. C. Qurban All BX. 18 P. C. Ghulam Hyder EX. 20 and who brought on record the memo of arrest and securance of incriminating articles from appellant As EX. 2-A Dr Hassan Shah, Medical Officer, EX. 23 and who produced medical certificate of the injuries of P. W./injured Rizwan Hyder as EX. 23-A and, finally, investigation Officer Nazir Hussain Awan as EX. 21 who produced sketch of dagger (chhurri) as EX. 21-A, F. I. R. u/s 13-D of Arms Ordi­ nance against the appellant as EX. 21-B and Chemical Examiner's report as EX. 21-C. the prosecution then closed its side, vide statement EX. 24. After the evidence as aforesaid, the appellant was examined u/s 342 Cr, P. C. but he denied the charge as levelled against him. In his further statement, he stated that on the night of incident his one guest Hyder Raza had come from Karachi and so at about 11 or 11-30 P. M. he, after leaving him (guest in his, Baithak came towards his house for taking meals. However, the main entrance of his house was found closed and so he came from the entrance of the house of his brother, when he reached his room, found its door closed from inside. He also heard murmuring from inside. Accordingly, he opened the inside chain of the door by putting his hand therein and as soon as he entered in the room one quilt was thrown on him as a result of which he fell down and a person was found running away from the room. He got up and saw condition. Her shalwar was lying under Seeing this, he lifted one chhurri lying on Then he chased the said person. However he succeeded in running away but when he was on road, his brother Rizwan Hyder caught hold of him from back side and in that process perhaps he might have sustained some injury. He then straight away appeared at P. S. Town Khairpur and informed about this incident. He also produced blood stained chhurri before some police Official present there. After about half an hour his brother Rizwan Hyder also reached there and informed about the death of Sajda. He was then locked by the police. He killed her as a result of 'Ghairaf. The appellant, however did not enter into his defence. Learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced appellant the above mentioned as herinbefore mentioned and consequently appellant has filed the above appeal on the grounds mentioned in the memo of appeal. Learned advocate for the appellant, ,at the outest submitted that be was not pressing the above appeal on merits, but only on the ground that offence committed by appellant in view of his judicial confession and statement under S. 342 Cr. P. C. would fall u/s 304 (1)P. P.C. and not under section ^02 P. P. C. In support of this, the learned counsel relied upon cases reported in PLD 1959 SC 480, SCMR 501, PLD 1963 Kar. 684 and PLD 1964 Kar. 264 and submitted that when two versions of the incident are before Court, one in favour of the appellant ought be accepted, as laid down by Hon'ble Supreme Court in PLD 1959 SC 40, [Sic]. The learned counsel for State at the out set submitted that in view of the statement of appellant u/s 342 Cr. P. C. and his earlier judicial confession, offence committed by appellant would fall under section 304 (1) P. P. C. and not u/s: 302 P. P. C. I have carefully considered the above submissions made by learned advocate before me and have gone through R & P of the learned trial Court and impugned judgment as wel! as cited by the learned advocate for appellant. It is admitted position, that appellant voluntarily appeared at police Station and surrendered himself with blood stained chhurri etc. Appellant also gave judicial confession and stood by it upto end and in his statement u/s 342 Cr, P. C. also repeated his stand, that he killed his wife due to grave and sudden provocation received by him, when he found his wife naked some one left his room by throwing quilt on his face and he ran after him also, but could not catch him. In view of this there are two versions of the incident brought on record and consequently as held by Hon'ble Supreme Court in case reported in PLD 1959 SC 480, the version in favour of the appellant ought to be accepted. In addition to this behaviour of appellant to go himself to police station, with blood stained c/j/iurri/dagger and make judicial confession lends support to his stand. P.Ws who are closely related to deceased, it is likely for family honour, would not, accept the stand of appellant as correct and consequently have given their own version of the incident, stand of appellant is plausible and as such I would accept the same. Therefore while dismissing the above appeal on merits, I alter the conviction of appellant u/s 302 P. P. C. to one u/s 304 (I) P. P. C. and [consequently reduce his sentence of imprisonment for life to 8 years R. I. fl|and maintain fine of Rs. 1000Q/- imposed on him or in default to suffer (further R. I. for 3 years and also maintain the conviction of appellant under section 324 P. P. C. for causing knife injuries to Rizwan Hyder and sentenced him to suffer R. I. for one year and also maintain his con­ viction under section !3-E Arms Ordinance and sentence awarded to him for one year on this account. However all the substantive sentences under section 304 (I) P. P. C. and 13-E Arms Ordinance in respect of imprisonment to run concurrently, I further grant benefit of the provisions of section 382-B Cr. P. P. C. to the appellant in respect of his period of detention as under-trial prisoner. (Aq.By.) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 320 Present : ABDUR RAZAK A. THAHIM, J Haji HAKIM and Others—Appellants versus THE STATE—Respondent Cr, Appl. No, 126 of 1979, decided on 1H2-1983 (i) Criminal Trial—

Witness-Related and inimical — Independent corroboration— Requirement of—Eye-witnesses related inter se and cases between one eye- witness and accused persons pending before incident— Evidence of alleged eye-witnesses, held, to require independent corroboration from unimpeachable source. [P. 324}B, E & M (ii) Criminal Trial-

-Recovers-Recovery of guu and empty shell—Ballistic report—• Non-axailability of— Effect of—Guu and empty shell not sent to Ballistic Expert—Blood not found from vardat —Evidence of reco, very of licenced gun from appellant, held, not to be considered as corroboration to evidence of eye-witnesses. (Pp. 323 & 324]A, G & H (iii) Criminal Trial—

Stranger—Reluctancy to give evidence—Held : Fact of strangers being (ordinarily) reluctant to give evidence in case involving others beina no rule, each case to be determined on its own facts. [P. " \L (iv) Pakistan Penal Code (XLV of I860)-

Ss, 326 34 & 324/34 -- Grievous hurt — Offence of — Conviction for — Evidence, appreciation of—Benefit of doubt — Eye-witnesses related inter yc? and enmity between parties admittedly existing before occurrence — No independent corro­ boration available — Presence of eye-witnesses at vardat doubtful—Discrepancy between FIR and statement of complainant in committal court—Recovery evidence not of any corroborative value — Incident in broad day-light near village consisting of 150 houses Concerned Medical Officer and Investigating Officer not examined due. to their non-availability—Held : Guilt having not been proved, appellants to be entitled to benefit of doubt. [P. 324]B, C, D, E, F, H, K, J & N PLJ 1978 SC 429 ; PLJ 1977 SC 412 ; 1969 SCMR 454 & 599 ; 1982 PCr. L J 1244 ; PLJ 1982 Cr. C. (Kar.) 315 & PLJ 1978 Cr. C. (Kar.j 352 ref. Mr. Mehar Hussain Messawa, Advocate for Appellant. Mr. Rashid Tariq, Advocate for State. Date of hearing ; 27-i 1-1983. JUDGMENT This appeal is directed against the Judgment dated 29-4-1979 of Addi­ tional Sessions Jud ge, Dadu whereby he convicted the appellants under Sec­ tion 326/34, 324/34 P. P. C. and sentenced each of them to suffer R. I. for three years and to pay a fine of Rs. 250/-each or in default to undergo R. I. for six months more. They have further been directed to pay compensation of Rs. 250/- each to she injured Sono failing which they been ordered to suffer imprisonment of six moe$bs. Briefly the facts of the prosecution case as disclosed in the F. I. R. lodged by Samano are that on 17- 10- 172, he, Allah Ditto, Paryal, Sono and Imamuddin had gone to Dadu. After finishing their work at the evening time they were on their way to their village. At about sun-set time Allah Ditto and Sono offered evening prayers in the mosque at village Sial. After offering prayer they started going towards their village. When they reached near Haji Dosan Culvert there came Haji Hakim, Sa\eh and Mohammad Bux duly armed with siengle barrel guns while Haji Piaro had a Lathi. Haji Hakim &red gun sbot which hit Sono on his left hand and other parts of the body. The witnesses issued Hakals to the accused persons who fired two gun shots in the air and ran away. Samano after leaving the injured Sono and other witnesses at wardat went to Police Station, Dadu where he lodged F. I. R which was registered under Section 307/34 P. P. C. AS1 Ghulam Rasool visited the place of wardat in presence of Mashirs Ghulam Mohammad and Din Mohammad. He recovered empty shell of 12 bore and a live cartridge from the place of incident and referred the injured Sono to Civil Hospital at Dadu for treatment and certificate. On 19-10-1972 accused were arrested. Haji Hakim produced his licenced gun and four live cartridges of 12 bore. After completing the investigation the case agaiast the present accused/appellants was challaned in the lower court and later on the case was committed to the Court of Sessions for trial. At the trial prosecution examined seven witnesses in support of the case.' P. W. 1 Samano complainant, P. W. 2 Sano, eye witness and injured P. W. 3 Allah Ditto, P. W. 5 Parial as eye witness of the occurrence. P. W. 4 Dur Mohammad Ex. 10 produced mashirnama of arrest of appellants. He has also acted as a mashir of securing of licenced gun from accused Abdul Hakim P. W 6 Ex. 15 Ghulam Mohammad is a mashir of wardat from where empty and live cartridges were secured. P. W. 7 Ex. 19 is Dr. Ashfaq wno has produced the medical certificate on bebaif of Dr. Radhomal who had left for India and could not be examined. Appellants/accused in their statement before the trial court have dented the allegation and pleaded not guilty. They have further stated that they have been involved due to enmity. No witness has been examined in defence. P. W. Samano Ex. 5 has supported his First Information Report and stated that on returning from Dadu he and Allah Ditto went to offer evening prayer leaving Sono, Paryal and Imamdin at Haji Dosan Culvert, and after offering prayer they proceeded to their village when all of sudden there was a "/fafco/" from the front direction and saw four persons whom he identified to be Haji Hakim who fired gun shot and other accused Mohammad Bux, Haji Saleh who were armed with gun and also fired but no body received injuries. He has further stated that he left Sono to the Otak of Haji Bachal and went to P S. Dadu where he lodged the report. P. W. 2 Sono, Allah Ditto P. W. 3, Paryal P. W, 5 have supported the version given by complainant Samano and injured Sono to the extent that four appellants were found at the wardat and Abdul Hakim fired gun shot which hit Sono. Medical Officer Dr. Ashfaq Ex. 11 has produced the injuries cerificate issued by Dr. Radhomal who examined the injured and issued the certificate. The following injuries were found on the body of injured Sono : : "(1) Gun shot wound 1" x 1" x 1|" on lower "f'of left middle finger crushkig the under-lying bone and soft tissue. Distal 1 of the finger was attached with only tag of the skin. (2) Lacerated wound (gun shot) |" x £" x skin deep on the back of left ring finger at its foot. (?) 2 pellet wounds of entrance {"" in diameter each i" apart from each other on lateral side of left gluteal region communicating with injury No. 4. (4) 2 pellet wounds of exit 1/3"" in diameter each 1-4" apart from each other on medial side of gluteal region. (5) Lacerated wound (gun shot) l"x|" x skin deep in between injury No. 3 and 4". Ghulam Rasul ASI who investigated the case could not be examined at the trial as it appears from the statement of Assistant P.P. of Dada Ex. 21 that he is dead. The case was originally registered under Section 307/34 P. P. C. and charges for the same offences were framed against the accused but finally the learned Additional Sessions Judge Dadu cams to the conclusion that offence according to him tails under Section 326/34 P. P. C. and 324/34 P P. C. The case of prosecution based upon the ocular testimony of complainant Samano, Sono injured. Allah Ditto and Mohammad Paryal. The gun and empty shell have not been sent to the ballastic therefore no such report is available on the record. 1 have heard Mr. Mehar Hussain Mesawa learned counsel for the appellants and Mr. Rashid Tariq appearing on behalf of the State. Mr. Mehar Hussain Mesawa contended that witnesses are interested and there is no corroboration to occular testimony. He has argued that Doctor who examined the injured and Police Officer who investigated the case were also not been examined by the Prosecution therefore defence had no opportunity to cross examine the important witnesses. He has also submitted that Haji Saleh, Mohammad Bus and Pario though armed with weapons have not caused injuries therefore there is exaggeration. He has invited my attention to cases reported in PuJ 19 H SC 429 SCMR 1969 page 454, P. Cr. L. J. 1982 Page 1244 and P. L. J. 1982 Cr. C. (Karachi) 315. Mr. Rashid Tariq learned counsel appearing on behalf of State contended that witnesses have supported the case aad Medical evidence supports the version of eye-witnesses. He has supported the impugned Judgment and relied on the cases reported in P. Cr. L.J. 1977 page 106 PLJ 1977 SC page 412 and PLJ 1978 Cr. (Karachi) page 352, PLD 1977 FC 77 and SCMR 1969 page 299. I have gone through the evidence and case law referred to by learned counsel. In the present case there is evidence of four eye-vntnesses, Samano, Sono, Allah Ditto and Mohammad Paryal. It is admitted that P. W. Mohammad Paryal is cousion as well as Masai of complainant Samano whereas injured Sono and P. W. Allah Ditto are brothers intersc B ndisputedly, the place of incident is near the village of Mohammad Hussain Siyal and it has aiso been stated by complainant Samano before trail Court that some persons came out from the respective places on hearing gun shot reports but none of them came near the injured. He had not stated in the lower Court that Abdullah Hakim fired gun shot which hit Sono. He has stated before the committal court that. "We heard the challenge followed by a gun shot which hit Souo and he fell down on the ground. There were 3 gun shots in all. We saw Haji Hakim, Piarao, Saleh and Mohammad Bux who had tired." According to F. 1. R, Abdui Hakim fired which hit Sono and accused Piaro had Lathi but in lower court he has deposed that all the four accused fired. P. W. Allah Ditto Ex. 9, who is brother of Sono has admitted O that there are about 200 houses in village Siyal and persons on hearing reports came out. He had informed Lai Mohammad, Nekmard of village about the incident. P. W. Mohammed Paria! Ex, 14 who is cousin of complainant Samano has stated that they informed Lai Mohammad and Ghulam about the incident at the Otak of Bachal. He has admitted that cases between Samano and the accused persons were pending before the incident P. W. Ghulam Mohammad Ex. IS who is mashir of warclat. He has admitted that wardat is at the distance of 100 paces from his village which consists of 150 houses. Gun and empty shell were not sent to Ballastic. The Boold was not found from wardai. Under these circumstauces the evidence of recovery of licenced gun from appellant, accused Abdul Hakim cannot vbe considered as corroboration to the evidence of eye witnesses. Moreover learned Additional Sessions Judge, has rightly observed that if accused intended to cause death of Sono there was no one to prevent them under the circumstances when three persons are stated to be armed with guns. The presence of eye witnesses Samano. Allah Ditto and Paryal, who are closely related to Sono at the time of incident also appears to be doubtful. The next circumstance that has persuaded ma to disbelieve the prosecution version is the absence of any independent witness. The incident has occurred in broad day light near the village Siyal where so many persons came from village and that injured was takento Bachal's otak where Ghulam Mohammad and Lai Mohammad were informed about the incident but prosecution has not examined a single person from among those who were available. I am conscious of the fact that strangers are reluctant to give evidence in case involving other persons but that cannot be a rule and each case will have to be determined on its own facts. The enmity is admitted between the parties as cases between Samano Atf and appellants were pending before the present occurrence and in that case the evidence of the alleged eye-witnesses would reef uire corroboration from an independent and unimpeachable source. For the above reasons, I am of the view that the guilt of four appellants has not beea satisfactorily proved. They are entitled to the benefit of doubt. Accordingly I hold that they are not guilty of the n offence with which they are charged. They are acquitted. The appellants are on bail. Their bail bonds shall stand discharged, (Aq, By.) Appeal accepted.

PLJ 1984 Cr C PLJ 1984 Cr C. ( Karachi ) 325 Present : MUNAWAR ALI KHAN, j MUHAMMAD AKHTAR—Applicant versus THE STATE—Respondent Criminal Bail Application No. 642 of 1983, decided on 21-8-1983. (i) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498—Non-bailable ounces—Grant of bail in—Discre­ tion—Exercise of—Held : While exercising discretion in non-bailable cases, court to keep in view likelihood of (i) abscondence of accused fii) creation of a terror or intimidation, d\\ tam.pedug, wtk evi­ dence, (iv) repetition of commission of similar or other offences and (v) danger to public at large—Held further : Discretion vested in court to be exercised judiciously and not capriciously or arbitrarily. [P. 32] B (ii) Criminal Procedure Code (V of 1898)—

S. 497—Bail—Grant of—Prohibitory clause—Aoplicability of— Two alternative punishments of imprisonment and fine provided for offence—Held : Offence being not exclusively punishable with either of punishments, trial Court to have unfettered discretion to resort to any punishment—Held further : Offence in such case not to be covered by restriction imposed by S. 497, Cr. P. C. [P. 326]4 (iii) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498 read with Emigration Ordinance (XVIII of 1979)— Ss. 17 (2) (b) & 18 (a)—Bail—Grant of—Incriminating articles—Re­ covery of—Effect of — Incriminating articles recovered from house shared by petitioner with co-accused—Applicant also not shown to be present, at time of recovery of such articles—Held : Incriminating articles having been recovered from joint possession of both applicant and co-accused and fact of applicant having knowledge of same yet to be ascertained, bail to be allowed. [Pp. 327J C & D Mr. Attaullah Khan, Advocate for Applicant. Mr. M. I. Memon, A. A. G. for State. Date of hearing : 21-8.1983, ORDER Having failed to get bail from the Special Judge (Central) Karachi , the applicant Muhammad Akhtar has approached this court for the same purpose. 2. The applicant abovenamed is accused of offences punishable under sections 17 (2) (b) and 18 (a) of the Emigration Ordinance, 1979. The prosecution case is that on receipt of spy information, the house jointly shared by the applicant and co-accused .laved was raided by the police and in presence of mashirs Nazir Ahmad and Jalilur-Rehman, the S. I. P. Sifat Ali Agha recovered one suit case of brown colour from the said house, containing incriminating articles namely 46 forged stamps made of rubber, metal and wood relating to Saudi Arabia, Iraq and U. A. E. it is alleged that these stamps are being used for illegal emigration of Pakistani man power to the aforesaid countries. These stamps alongwith other forged documents including forged entry visa of Saudi Arabia were seized by the police, who after completing due investigation put the applicant on trial. Mr. Attaullah was heard in support of the application and Mr. M. I. Memon A. A. G. made his submissions on behalf of the State. The preliminary point raised at the bar was if the offences attribut­ ed to the applicant fall within the prohibitions contained in section 497 Cr. P. C. It was contended by the learned counsel for the applicant that the punishment prescribed for the said offences is either R. I. for 14 years or fine and therefore it is entirely within the discretion of the court to impose either of these punishments. The learned counsel was therefore of the opini­ on that the punishment prescribed for the above offences cannot be held to be the one failing within the meaning of subsection (1) of section 497 Cr. P. C. Accordingly his argument was that the offences in question lie outside the pale of the embargo imposed by section 497 Cr. P. C. which therefore does not stand in the way of grant of bail to the applicant. Sub-section (1) of section 497 Cr. P. C. is reproduced as under : "When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a policestation, or appears or is brought before a Court, he may be re­ leased on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprison­ ment for ten years." 5. It would appear from the above provision that if there is prima facie case against the accused to show that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, he is not to be released on bail. 6. The point for consideration however is whether the offences involved in this case are to be construed to be punishable with life imprison- ment or imprisonment for 10 years within the meaning of above sub-section. No doubt the imprisonment for 14 years has been prescribed for the ffences under onsideration. But in the alternative punishment of fine has also been provided for the said offences, when two alternative punishments, one of imprisonment and an other of fine, are provided for any offence, the trial court would have unfettered discretion, to resort to any punishment. In such a case it would be difficult to hold such offence to be exclusively punishable with either of the punishments. Therefore I am inclined to agree with the view that the offences under consideration are not covered by the restrictions imposed by section 497 Cr. P. C. 7. The above view finds support from two uareported cases namely S. Ashraf Ali Shah Vs. State (Cr. Bail Application No. 33 of 1982) and S. Jawaid Hussain Vs. The State (Cr. Bail Application No. 804 of 1984). However if the case falls outside the limitations contained in section 497 Cr. P C. it would not mean that accused, iu the case of non-bailable offence, would automatically be released on bail. If the accused is charged with commission of non-bailable offence, the court has to exercise its discretion to decide if the accused should be released on bail While exercising its discretion, the court will keep in view the factors namely, that the accused will not abscond, that he will not terrorize 01 intimidate the witnesses, that he will not tamper with evidence, that he wil not repeat the commission of similar or other offences and that he will no' be hazardous to the public at large. Thus the discretion vested in the court is to be exercised judiciously and not capriciously or arbitrarily No doubt it has been repeatedly held by superior courts that in the cases not covered by the embargo of section 497 Cr. P.C., grant of bail is a rule and its refus­ al is an exception. Nevertheless the court will keep before it the guidelines referred to above, while deciding about grant of bail. In the instant case it has been argued that the only evidence against the applicant is the recovery of incriminating articles from the house which he shares with the co accused. In other words the incriminating articles have been recovered from joint possession of both the applicant and the co-accused. It is yet to be ascertained if the applicant had knowledge ot the aforesaid articles to be lying within the house in which he was living It is not shown that the applicant was present in the house at the time of the recovery of the said articles. Apart from above, the learned A. A. G. has not expressed any fear that if the applicant is released on bail, he would abuse the concession by absconding or by tampering with the evidence or indulging in commission of similar or other offences. However he has invited reference to the case of Ch. Mehdi Khan Vs. The State (Cr. Bail Application No. 558 of 1983) which, according to him, is on all fours with the present case, and since bail was refused in the said case, the application for bail moved in this case should also be dismissed. I have gone through the order passed in that case. It is found that the facts of the above case are different inasmuch as that unlike the present case, the incriminating articles were recovered from exclusive possession of the accused. Thus the case cited by the learned A. A. G. lends him no assistance. 10. For the foregoing reasons, bail is granted to the applicant in the| D sum of Rs. 5U,OOJ/- and P. R. of the same amount to the satisfaction of thcj trial court. (TQM) Bail allowed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 327 Present : Z. C. VALLIANI, J MISRI and 3 Others—Appellants versus THE STATE—Respondent Cr. Appl. No. 188 of 1982, decided on 29-3-1983. (i) Criminal Trial— -- Accused — Identification of— Held identification oi' accused, as person who called deceased, on basis of voice being doubtful same not be relied upon. [P. 331]/4 1970 Pak. Cr. L J 633 ref. (ii) Criminal Trial— -- Witness— Inimical to appellants and closely related to deceased- Testimony of— Independent corroboration — Requirement of— P. Ws. closely related to deceased and dispute over land also admittedly existing between parties— Held : No reliance to be placed on their statement without independent corroboration. [P. PLJ 3973 SC 23 & PLJ 1981 Cr. C. (Kar.) 191 ref. (Hi) Criminal Trial -- Recovery — Evidence of — Statements of recovery mashirs not in­ spiring confidence — Investigating Officer failing to choose indepen­ dent and respectable mashirs of locality, without any explanation- Held : No reliance to he placed to such recoveries. [P. 331JC (ir) Pakistan Penal Code (XLV of 1860) - -- Ss. 302/34 — Murder — Offence of —Evidence, appreciation of — Benefit of doubt — Dispute over land admittedly existing between parties — No independent witness produced— PWs closely related to complainant — Recoveries not relied— Medical evidence not support­ ing prosecution caee regarding time of alleged death — Prosecution, held, failed to establish its case beyond reasonable doubt, against all appellants. fP. 3211/4, B, C & D Mr. Muhammad Hayat Junejo, Advocate for Appellant, Mr. Akhtar Qareshi, Advocate for State. Date of hearing : 23-3-1983. JUDGMENT Appellants abovenamed, being aggrieved by judgment dated 4-11-1982 of the learned Ilnd Additional Sessions Judge, Sukkur, in Sessions case No. 19/80, by which appellants have been convicted under section 302/34 P. P. C. and sentenced to imprisonment for life and to pay fine of Rs. 2,000/- or in default to suffer further R. I. for six months, have preferred the above appeal, on the following facts and grounds : — The case of prosecution briefly stated is, that on 1st January, 1980 at about 8-30 a.m , the complainant Ali Khan lodged his F.I.R. with the Police Station Mirpur Mathelo, stating therein, that he resides in village Nathu Gabole. The appellant Sawan and others are residing in a village near to village Nathu Gabole, and there was dispute between them over land. The appellants used to threat the complainant party, that they would see them. Last night while he complainant and his sons Kehear (deceased) and P. W. Haji Ghulam Nabi were sitting in their house, when at about 11.30, the appellant Misri gave a C3J! lu the deceased Shear from outside. The deceased responded and went outside. After meeting the appellant Misri, the deceased returned and informed his father that fee was accompanying the appellant Misri and going out with him. When ttll about midnight, the deceased did not return, the complainant took his second son Ghulam Nabi and nephew Haji Hazoor Bux aad went in search of the deceased. They first went to the house of the appellant Misri aad found that he was absent. The complainant and .others wasted to return to their house. At that moment, they beard cries. After cover­ ing some distance, they reached the land of Ghukm Qadir Laiki . P. W. Ghulam Nabi is stated to have flashed the torch., towards the direction, from where the cries were being heard. On the torch light, th?.y saw four appellants running away^ armed with hatchet. On reaching at the spot, they found the deadbody of Kehar, lying with hatchet injuries, on his person. The complainant then reached the police station Mirpur Mathelo and lodged the report as 8-30 a.m. covering the distance of 33 miles as already stated herein above. S.H.O. Lai Bus recorded the FIR as per instructions of the complain­ ant and, thereafter visited the place of occurrence, which was pointed out by the complainant. He found dead body of Kehar, The mashirnama of injuries and inquest report were prepared. The deadbody was removed to the hospital for post-mortem examination and report. The torch was produced by P.W. Ghulam Nabi and such masirnatna was perepared. On the same day the S.H.O. recorded the statements of P.Ws. Haji Ghulam Nabi, Haji Huzoor Bux and Haji Jam. On 3-1-1980, he arrested the appellants Misri, Khamiso and Befaram. He interrogated the appellant separately. On the same day, the appellant Misri produced blood stained hatchet and clothes. He led the S.H.O. and mashirs to his house and produced blood stained hatchet. This appellant produced one loin cloth stained with human blood. These articles were lying concealed under bushes. He secured the same and such mashirnama was prepared. These articles were also sealed. On 15-1-1980 the S.H.O. arrested the appellant Sanwan. On 16-1-1980 statements of P.Ws. Ghulam Nabi and Hazoor Bux were recorded by the Hon. Magistrate Ghotki under section 164 Cr. P. C. However, all observing all usual formalities the appellants were challaned in the Court of Civil Judge and F. C. M. Mirpur Mathelo. The case was sent to the Sessions Court Sukkur, The learned Sessions Judge sent the present case to the learned trial Court, for disposal according to law. A formal charge for an offence punishable under Section 302 read with Section 34 P. P. C. was framed against the appellants to which they pleaded not guilty claimed to be tried. Therefore, the trial of present case started. The prosecution in support of its case has examined P.W. i Nawab All (Ex. 10), P. W. AH Khan (Ex. 12), P. W. 3 Haii Ghulam Nabi (Ex. 14), P. W. 4 Haji Hazoor Bus (Ex. 15) P. W. 5 Dr. Abdul Ghafoor (Ex. 16), P. W. 6 Muhammad Rafique (Ex, 18) P. W. ? Allahdino (Ex. 19), P. W. 8 Haji Jam (Ex. 26), P. W. 9 La! Bux (Ex, 27) aad thereafter, the learned A.P.P. his statement Ex. 29 closed the side of prosecution. The learned trial Court taking into consideration the evideacs adduced before it, convicted and sentenced the appellants abovenamed as herein­ before mentioned and consequently the appellants have fiied the above appeal, on the grounds mentioned in the memoof appeal. The learned advocate for the appellants in support of the above appeal submitted as under :~ That is an unwitnessed murder. That identification of appellant Misri in respect of the call given by him on the basis of his voice cannot be considered to be sufficient for purposes of identification and in support thereof the learned advocate for appellants relied upon case reported in 1970 Pak. Cr.L. J. 633. All the P.Ws. are closely related to the deceased including mashir and in view of the admitted enmity, between the parties, no reliance can be placed on their statements without independent corroboration. In support of this the learned advocate for the appellants r- lied upon case reported in PLJ 19al Cr. C. (Kar.) 191 and PLJ 1973 SC 23. (rf) That there was no ocular evidence at all in respect of the murder in question except circumstantial evidence which has been con­ sidered by the learned trial court as ocular evidence for purposes of the conviction of the appellants, which is contrary to the law laid down by the Superior Courts and as such convictions of the appellants on such evidence, without independent corroboration cannot be sustained. (e) That the alleged recoveries have not been proved by respectable and independent mashir i. In fact P. W. Aliahdino, one of the mashir of such alleged recoveries bad not supported the prosecu­ tion case, but the learned tiral court has wrongly held, that he has supported the prosecution case'. The second mashir which was examined by prosecution had not at all supported the pro­ secution case in respect of the alleged recoveries, although be was examined after the prosecution realised that P. W, Aliahdino. the earlier mashir has not supported the prosecution case. (/) That there is contradiction in the medical and oral evidence re­ garding the time of the murder. According to medical evidence on record, the murder took place after the deceased has fully digested his night food, whereas according to the prosecution witnesses the murder bad taken place within 2 hours on taking of such meals. In view of the above submissions the learned advocate for the appellants urged, that prosecution has failed to establish its case beyond reasonable doubt against all the appellants abovenamed. The learned advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as the prosecution story of the incident is improbable and further more there are no eye­ witness of the murder in question and the circumstantial evidence is based on the statements of P. W. who are interrelated and against whom the appellant> have alleged enmity and as such their statements required in­ dependent corroboration, which is not at all available in the present case, as alleged recoveries cannot be relied upon, as the investigating officer failed to pick independent and respectable mashirs of the locality al­ though they were available, but chose close relation of the complainant side and further because the mashirs in question have also not supported the prosecution case. 1 have carefully considered the above submission made by the learned advocates before me and have gone through ihe R & P of the learned trial court and the impugned judgment as well as cases cited by the learned advocate for the appellants, In view of complainant's own admission in FIR, that there existed land dispute between parties, on account of which appellants used to threaten them, the story given in FIR how appellant Misri called deceased and deceased went with him, on the face of it looks improbable. No doubt Complainant and other P. Ws., before learned trial court gave up this motive of enmity, perhaps as they realised, it would come in their way. In addition to this, identification of appellant Misri as person, who called the deceased, on the basis of voice, is also doubtful and cannot be relied upon. All P.Ws., are closely related to complainant and in the face of the admitted enmity and dieputes between the parties over land, no reliance can be placed on their statements, without independent corro boraUon, in my opinion, specially as none of the P.Ws. are eye-witnesses and their evidence is only circumstantial. Learned trial court for purposes of corroboration relied upon alleged recoveries from appellants. I have carefully gone through the statements of P Ws Allahdmo and P. W. Haji Jam, the alleged mashirs of recoveries. P.W. 8 Hdji Jam has not at all supported prosecution case in respect of alleged recoveries, whereas P W, ? Ailahdino in his statement before the learned trial court categorically stated that appellant Bahram and Khaimsn produced nothing before the police, but stated that appellant Misn did produce blood stained hatchet and clothes. In his cross, he stated, that when police came to vardat appellants were present, but according to prosecutioa they were arrested after three days, as mentioned in niashirnama of their respective arrests. He however, stated that they were not arrested by police at vardat, though they were present. State­ ment of P.W Ailahdino, who is also related to complainant does not inspire confidence at all, in viwe of the various contradictions in the said statement itself. Investigating officer failed to choose independent respect­ able mashirs of locality for alleged recoveries, for which he was given no explanation at all and as such no reliance can be placed on said recoveries, in my opinion. In addition to this medical evidence also does not[ support the time of alleged death. Keeping all this in view, prosecution has failed to establish its case beyond reasonable doubt, against the appellant, in my opinion. Therefore I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that they be released forthwith, if not required in any other case, (Aq. By.) Appeal allowed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( AJK Shariat Court ) 332 Present : ABDUL MAJEED MALLICK, C J KHADFM HUSSAIN—Petitioner versus THE STATE—Respondent Criminal Misc. No, 180 of 1983, decided on 12-1-1984. fi) Criminal Procedure Code (V of 1898)—

S. 497—Bail—Grant of—Further enquiry -Rule of—Held : Ques­ tion of further enquiry being question of fact, rule of bail in cases of further enquiry not to be absolute and universal one—Appli­ cation of such rule to be tested in light of facts of each case and only in fit and suitable cases, concession of bail to be allowed—Held further : In absence of discharge by petitioner of otfp regarding ground of further enquiry being not artificial one, concision of bail not to be available on such grounds. jP, 333J-4 (ii) Criminal Procedure Cade (V of 1898)— __~_s. 497—Bail—Grant of—Further enquiry —Plea of—No prima facie satisfactory material constituting alleged ground of further enquiry available on record—Held : Plea of further enquiry not to be sustainable. [P. 334]B PLJ 1983 SC (AJK) 77 & 1983 P Cr, L J 2019 distinguished. Mr, Mumtaz Hussaist Rathore, Advocate for Petitioner. Mr. Kafiqae Msthmood Khaa,Additional Advocate General for State. Date of iastitatioa ; 22-8-1983. ORDER This petition for grant of bail is directed against an order of the District Criminal Court, Poonch, dated 10th of August, 1983, whereby application for grant of bail, was rejected. 2. The petitioner alongwith Muhammad Saleem, his brother, is facing trial on the charge of murder of Mst. Jagda Begum deceased. It was alleged that on 30th of April, 1983 at about 4 P.M. Mst. Jagda Begum deceased, while coming back home with a bundle of leaves (fodder for cattle), alongwith Mst. Jan Bibi and Ghulam Bibi, was way laid by Muhammad Saleem, accused who stabbed in her abdomen. The petitioneraccused was ascribed the role catching hold of the deceased and facilitat­ ing in infliction of stab wounds with knife. The motive for the murder, as mentioned in the report and evidence of the witnesses, was that Muhammad Saleem who claimed his engagement with the deceased forced her to accom­ pany him without going through the formalities of Nikah, and, Rukhsati. On refusal of the deceased to obeythe accused she was killed by the accus­ ed persons. The incident was shown to have been witnessed by Mst. Jan Bibi and Mst. Ghulam Bibi, companions of the deceased. The deceased alongwith her companions went to the forest for bringing leaves for their cattle. They were coming hack when deceased was attacked by the accused persons at the place ol incident. The trial court refused bail to the petitioner on its sati-sfacti n that prima facie, prosecution successfully brought home reasonable grounds connecting the accused with the liability of furtherance of common intention kill the deceased. Mr. Mumtaz Hussain Ratbore the learned counsel for the accused, tried to persuade to allow bail as the petitioner was not ascribed infliction of injury to the deceased. It was argued that allegation of mere catching hold by itself was not sufficient to disallow concession of bail. In support of his view, he made reference to PLJ 193 SC (AJK) 77 and 1983 P Cr. L J 2019, 1983 N L.R. (Cr. J) 44. Mr. Rafique Mahmood Khan, the learned Additional Advocate General opposed the petition on the plea that the accused-petitioner was equally liable for the murder of the deceased. In presence of the testimony of two eye-witnesses and keeping in view the conduct of the accused persons, it was suggested that concession of bail may be with-held. In support of the contention, reference was made to PLD 1978 SC 236 and PLJ 1979 Cr. C (Lab.) 510. The material collected by the Investigating Officer and evidence recorded by the trial Court, prima facie, suggest that the murder of Mst. Jagda Begum, is the result of her refusal to go with the principal accused even without going through the formalities of marriage. The incident took place in 'Jungle' when the deceased was going home with the tree-leaves for her cattle, alongwith the eye-witnesses. According to the prosecution version, Muhammad Saleem, accused forced the deceased to accompany him to his house and on her refusal to obey, he stabbed her. The bundle of leaves on the head of the deceased fell down, on which the accusedpetitioner caught hold of the deceased and facilitated in infliction of stab wounds. The accused persons, as stated earlier, are the real brothers. The immediate cause of murder as attributted to the accused persons, the conduct ascribed to the petitioner and the place and time of incident, obviously lead to an inference adverse to the case of the peti­ tioner. It is correct that in the case of Matloob Hussain Shah [PLJ 1983 SC (AJK) 77], bail was allowed to him in presence of an allegation of catching hold of deceased, at the time of firing on the deceased by the principal accused, yet the attribution by itself was not considered conclu­ sive to grant the concession of bail. Such a concession was allowed keeping in view the fashion of incident and the age of the accused in that case. The Court was satisfied that it was a case of further inquiry. Like­ wise, in the case of Sher Muhammad and others, Yar Muhammad, one of the accused who was attributed the allegation of catchirig hold of the deceased at the time of occurrence, was released on bail, as question of bis vicarious liability, in the circumstances of that case, was considered one of further inquiry. The position of the present case is distinguishable as in the instant case, the trial Court has already recorded the evidence of one of the eye-witnesses. 3. It is is necessary to state that the question of further inquiry being a question of fact, rule of bail in the cases of further inquiry, was not an absolute and universal rule. The application of the rule is tested in the light of the facts of such case. It is only in fit and suitable cases where con­ cession of bail is allowed by virtue of rule of further inquiry. It may also be declared that in order to seek the benefit of the rule, onus is placed on the petitioner to satisfy the Court that the ground of further inquiry was not an artificial ground. In absence of discharge of the onus referred to above concession of bail was not available on $»eb a ground, Tn the present Jcase, there is no, prima facie, satisfactory material constituting the alleged Iground of further inquiry. The plea is, therefore, not found sustainable. 4. In presence of the aforesaid position of the case, it is not con­ sidered expedient to allow bail at this stage. However, the petitioner shall be free to seek his release on recording of the evidence of the other eye witnesses. The trial Court shall equally be free to consider the question of bail of the petitioner irrespective of the finding of this Court. The petition is therefore, dismissed. (MIQ) Pew ion dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. AJK ( Shariat Court ) 334 Present : ABDUL GHAFOOR 1 THE STATE— Petition;.-!- BASHARAT AHMAD and Other.i— Respondent- , Criminal Reference No. 0.84, .insvcu-J ?n iK,<- -)9X4. Islamic Law & Jurisprudence — -- Women witnesses ---- Evidence of — Statement — Recording ot-~ Procedure for — Held : Both women witnesse> to remain present before Court at time of recording of statem nt and their statements to be recorded one by one according to law and practice «n vogue for recording statements- Woman witness making statement stating something not true (account of matter in dispute) according to other women witness hearing such statement— -Helu : Such other women to be at liberty to help her to remember correct version [P, ^38'M Holy Quran Sura-e-Baqaia/i (verse 282) rel Al-Mabsoot (vol. \l p. 142} Imam Surkhasi , Al-ta/iavi by Imam Tahavi, Durre Mukhtar (Vol IV, p. 576) by Sh. Muhammad Abedeen ; .41 Aabhah (Vol. I p. 206) ; Fateh-ur-Rehmani (p. 304) by Syed Sabat Abi Al-Mdani ; Ahkamul Qur'an (Vol. 1, p. 508) by Maulana Ashraf AH Thanvi ; Tafseer Al-Muragtti (Vol 111) by Ahmed Mustafa Al-Muraghi ; Tafseer Minari (Vol. Ill) by Muhammad Rashid Raza Misri & Tafseer \fauloom-ul-Q man (Vol. II. p. 377) by Maulana Muhammad AH Siddiqui ref. Mr. Muhammad Nisar Mirza, Additional Advocate General for State. Mr. Muhammad Yunus Surkbari, Advocate for Respondent. Date of institution 19-4-1984. JUDGMENT This is a reference made by District Criminal Court Mifpur and it arises out of the following circumstances, 2. A criminal case titled ; Sfate v, Bashfr Ahmad and others ', wherein the respondents are facing trial under Sections 14/15 of the Islamic Penal Laws Act of 1974, is pending in the District Criminal Court Mirpur. The prosecution has cited, among others, two women witnesses, namely, Khateeja Begum and Makhtool Begum. On 22nd of January, 1984, both of the above named women witnesses were present and the public prosecutor requested the Court to record the statement of one of the aforesaid witnesses but the learned Counsel for the defence raised an objection and stated that both the women witnesses are required to be examined together in accordance with Islami Shariat. The Court heard the learned counsel for the parties but could not return a unanimous verdict. The learned Sessions Judge agreed with the Public Prosecutor and favoured the examination of one woman witness after the other according to the prevalent procedure, whereas the District Qazi upheld the objection raised by the defence counsel and arrived at the conclusion that examination of both the women witnesses together, was the requirement of law. As both the members of the District Criminal Court differed on the point, this reference has been made to seek the solution of the point in controversy. The learned Additional Advocate General endorsed the point of view of the learned Se sions Judge and urged that the evidence of each of the women witnesses, is required to be recorded separately because this is the only method of testing the variety of the witnesses and shifting the grain from chaff. The learned counsel for the defence, on the other hand, was reluctant to accept this view point. I have considered the points raised by the learned counsel for the parties and have gone through the order separately recorded by both the members of the lower Court. To find out the solution of the matter, referred to above, I have sought guidance from the Holy Qur'an Verse No 282 of 'Sura-e-Al-Baqarah\ The relevant passage of the Verse and its Urdu and English translations are reproduced below :•-•- "And call to witness from among your men two witnesses. And if two men are not at hand, then a man and two women, of such, as yee approve as witnesses, so that if the one errs (through forgetfulness), the other will help her remember." 6. In the above cited command of Almighty Allah both of the women are to act as witnesses and in case, one of them forgets to give correct account of the matter in dispute, the other (second one) woman will help her remember the correct slates of the disputed point. It means that both of the women will assume the character of witnesses and will act as such. This is only possible if both of them undergo the formalities of making xammation-in-chief, cross-examination and re-examination, if the required and if during this course, one forgets to give a correct version of the disputed point, the second one will help her remember the correct version. 7. The purpose of the words ( J^.j j! jfJx) used in the Verse, can only be accomplished if both women are present together and the woman, making the statement, suffers forgetfulness and the other helps her reme­ mber the correct, account. 8. This view finds support from the work of eniment scholar Imam Surkhasi popularly known as Al-Mabsoot Volume 17. The learned author, at page 142, stated that both women witnesses will be examined together and to record their statements separatetly, is not permitted. His view, in his own words is reproduced below : — "It is not permissible to record the evidence of one woman alone (in the absence of the other woman)" 9. Imam Tahavi, another eminent scholar in his work, "Al-Tahavi" expressed the same view. The relevant passage is produced below : — "You cannot separate them. This is a command of Almighty Allah, if one forgets, the other may help her remember.' t 10. In Dune Mukhtar Volume IV page 576, Sheikh Muhammad Amin Ibn-e-Abedeen, particularly known as Sheikh Muhammad Abedeen, while dealing with the point ^»f evidence of the women witnesses, has stated that one man and two women should give evidence. The two women witnesses should not be separated from one another at the time of their statements as it is Commanded by Almighty Allah that one may help the other to recollect the true account of the point in issue, His own words are reproduced as under : 11. The learned author of Raddul Mukhtar, has quoted an instance, in his great work, where a woman, while appearing as a witness, drew the attention of the Judge, who wished to record her statement separately, to Verse No. 282 of "Sura e-Al-Baqarah Al-Qur'an" and the Judge acted accordingly. This instance related to a woman named Ummul Bashir who was examined as a witness. The quotation from the book is as follows : "It is said, A woman, Utnm-Ul-Bashir by name came to give evidence before the Judge. The Judge ordered. Both (women) should be separated. She said, "You cannot do this because Almighty Allah has ordained, if one (woman) forgets, the other (woman) may help her remember." 12. Syed Sabat Abi Al-Mohani, at page 304 on the authority of Al-Ashbah Volume I, page 206, while dealing with the issue in hand, has stated in his great work Fateh-ur-Rehamani, as follows : — "The Mothers of Imam Shaafi and Mursee, went to a Judge for giving evidence on certain point. The Judge wished to record their statements separately and asked for separation. The Mother of Imam Sbaafi said, "p. Judge, "it was not so permitted. The God Almighty has ordained ; if one forgets, the other may help her recollect." Thus, the Judge left the idea of separation." Maulana Ashraf Ali Thanvi, a great scholar in his esteemed work, "Ahkamut-Qur'an" Volume I page 508, while dealing with the subject of evidence of a woman has stated that the evidence of t wo women witnesses is a substitute of one man witness, therefore, two women wit­ nesses will follow the same order which a man witness has to do. Ahmad Mustafa Al-Muraghi in his Book Tafseer Al-Muraghi Volume III, published in Egypt , has stated that it is obligatory on the Judge to record the evidence of one woman witness in the presence of the other woman witness. The exact words used relevant to the point in issue are reproduced below : — "It is enjoined on the Judge to record the statement of one (woman witness) in the presence of the other (woman witness) and complete the portion left by one from the statement of the other." 15. Muhammad Rashid Raza Misri. in the Book Tafseer Minor' Volume III published in Beirut, has stated that it is not only proper but is obligatory on the Jjdgealso to enquire about the point in dispute, from one (woman witness) in the presence of the other (woman witness) because Almighty Allah has ordained that the evidence of two women witnesses, is a substitute for the evidence of one (man) witness. The relevant passage from the Book is reproduced below with advan­ tage :— "It is not only proper but is also obligatory on the Judge to enquire about the point in issue from one woman in the presence of the other woman and complete the portion left by one, from the evidence of other.'' 16. Maulana Muhammad AH Siddiquei, in his Book Tafseer Mauloomut-Qur'an published by "Adara-e-Taleemat-e-Qur'an" Second Volume, at page 377 expressed the view that the Court is under obligation to record the statement of both women witnetses in the presence of one another. His own words are reproduced here under :— 17. It will be useful to mention here that the subject of this reference was as to what procedure was required to be followed, while recording the evidence of women witnesses if the women witnesses are cited by a party to prove his case, therefore, I have confined myself to the point referred to above not expressed myself as to on what subject the women witnesses are competent to give evidence. 18. Keeping in view the Qur'anic injunction and the law, I hereby return the reference with the following observations :— "At the time of recording the statement, both of the women wit­ nesses shall remain present before the Court and their statements shall be recorded one by one, according to the law and practice in vogue for recording the statements of witnesses. If during the course of the statements, one woman witness, making the state­ ment, states something which, according to the other woman witness hearing such statement, is not the true account of the mater in dispute, she (the other woman) will be at liberty to help her remember the correct version." 19. The reference is answered accordingly . (TQM) Reference answered.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Karachi ) 338 Present : ABDUL RAZZAK A. THAHIM, J NOOR MUHAMMAD— Applicant versus SHAKEELUDDIN AHMAD and Another— Respondents Criminal Misc, No. 976 of 1983, decided on 12-2-1984. (i) Criminal Procedure Code (V of 1898)- — S. 498— Bail before arrest — Application for— Additional Sessions Judge— Competency to decide — Case not on files of Additional Session-! Judge — Held : Additional Sessions Judge, unless incharge of Sessions Division, not to dispose of bail before arrest matters (in cases not on his files). [P. 342[D (ii) Criminal Procedure Code (V of 1898)— ——S. 498—BaiS before arrest—Application for—Additional Sessions Judge—Disposal by Sessions Judge absent or incapable of dealing with bail matters—Held : Bail applications being of urgent nature, same to be (competently) d isposed of by Additional Sessions Judge, [P. 343]£ (iii) Criminal Procedure Code (V of 1898)— ——Ss. 498 & 17 (4)—Bail before arrest—Application for—Additional Sessions Judge—Transfer of application to—Held : Sessions Judge to transfer application under S. 498 Cr. P. C to Additional Sessions Judge (only) in case of his being incapable of acting or otherwise as provided under S. 17 (4) Cr. P. C. [P. 343]F (iv) Criminal Procedure Code (V of 1898)—

S. 498—Bail before arrest—Application for—Delay in filing of— Effect of— Respondent, allegedly in Bahawalpur on day of incident, not appearing immediately after his return before police officer or court and instead applying for interim bail about 1| months after incident—Held : Late appearance to clearly show respondent intentionally absconded, [P. 341J/4 (v) Criminal Procedure Code (V of 1S98)— ~S. 497 (5)~Bail—-Cancellation of—Incident taking place during day time—One of victims dying due to injuries while two others receiv­ ing injuries—FIR also promptly lodged—Held : Prima facie case under Ss. 302, 307/34 having been made out, bail granted to res­ pondent to be cancelled. [P. 342]B & C Mr. Ahmad Khan Barazkai, Advocate for Applicant. Mr. Masiahsan Siddiqui, Advocate for Respondent. Mr. A. A, Muhammadally, A. A. G. for State. ORDER This is an application under Section 497 (5) Cr. P. C. filed by Noor Muhammad complainant for cancellation of bail granted to Shakeeluddin Ahmad, respondent by the III Additional Sessions Judge Karachi on 5-11-1983 in a Sessions Case (No. 722/1963) peuding in his Court under Sections 302, 307/34 P. P. C. According to the prosecution case, ou 9-8-i983, applicant Noor Muhammad lodged an F.I.R. at 06-30 a.m. at Korangi Police Station Karachi, which was registered under sections 302, 307/34 P.P C. Noor Mohammad has stated in his complaint that on 9-8- 1983 at obout 1.30 a.m. due to failure of electrie supply, he was sitting out side the bouse with his neighbour, when Najmuddin, Javed. Raees who were also sitting there, they told him that bis father had suffered a knife blow from one Azad with whom he later compromised and they paid for his father's medical charges which he has not been able to pay as yet. On his protest, the three brothers named above slapped him. He was rescued by other neighbours. He lodged report of this incident at Korangi Police Station. Next day about <5-^0 a.m. while he was going to get milk from a Hotel, He was caught by the all four brothers namely, Najumuddin Javed, Raees and Shakeeluddin Ahmad. Rases stabbed him on his chest, on this Muhammad Shaft's uncle came to rescue but he was also caught by the respondent. Najumddin, who had an iron rod while Javed stabbed him. His maternal uncle Rafiq came. He too was beaten. The above said incident was witnessed by Ismail, Yaseen, Waseem, Rafiq, and Yaqoob, who intervened and rescued them. Muhammad Shafi, injured was re­ moved by Yaqoob and Ismail in a taxi to hospital where he succumbed due to injuries. Police during the course of investigation arrested accused Najamuddin, Raees and Javed, all the three brothers alongwith Shakeeluddin Ahmad, who was shown as absconder. The challan was filed on 20-8-1983. On 3-10-1983 respondent/accused Shakeeluddin appeared before the Ilird. Additional Sessions Judge Karachi before whom the case was pending. He filed an upplication for bail before arrest under Sec­ tion 498 Cr. P. C. and learned Additional Sessions Judge on the very date granted interim bail before arrest with notice to Assistant Prosecutor, and the matter was fixed for 12-10-1983. Finally he confirmed the bail by an order dated 5-11-1983. Being aggrieved with the order of bail before arrest granted to the respondent, the applicant has filed this cancellation application, I have heard Mr. Ahmad Khan Barakzai, learned advocate for appli­ cant and Mr. Mustahsan Siddiqui, learned advocate for respondent and Mr. A. A. MohammadaUy A. A. G. for the State. Mr. Ahmad Khan has contended that the learned Additional Sessions Judge has completely decided the entire case and observations made in the order have clearly prejudiced the case of prosecution. Mr. Ahmad Khan, argued that learned Additional Sessions Judge was not competent to grant bail before arrest in view of the legal position. Mr, A. A. Mohammadalley, Assistant Advocate General has fully supported the cancellation application and argued that this incident has taken piace in broad day light and as many as 10 witnesses saw the incident and named the respondent Shakeeluddin as accused person along with the ottter co-accused. He is also of the opinion that bail before arrest can only be granted in some exceptional circumstances, and in the instant ca-,5 the order of the learned Additional Sessions Judge is liable to be set aside. He also made submission that this order will clearly prejudiced the mind of the trial Judge therefore the case be handed over to another Judge for trial. On the other hand Mr. Mustahsan Siddiqui has submitted that no overt act is assigned to the respondent in the F.I.R. and he has been involved due to enmity and that oe the day of incident the respondent was in Bahawalpur . The relevant documents were produced before Additional Sessions Judge, who consider­ ed the plea of alibi and granted the bail before arrest. He has relied upon a case reported in PLJ 1978 SC 327=PLD 1978 SC 256. I have gone through impugned order of the Additional Sessions Judge and reproduce the relevant portion, so far alibi is concerned as under : •— "Ths paramount question for consideration io a case where plea of raised is to the effect that Court while considering such plea is bound to give decision on the basis of evidence prima facie appear in case and that assessment is tentative shifting of evidence which is altogether different from elaborate shiftinq of evidence. I am supported in this view by and authority reported in PLD 1975 SC page 256. The contention of learned counsel for the complainant that superior Courts do not grant bail before arrest on the plea of alibi is overruled by fact that in case an accused was admitted on bail before arrest in a case under section 302/ 436 P. P. C. by Hon'ble High Court and application for cancel­ lation was made in Hon'ble Supreme Court and it was held by Hon'ble Supreme Court that bail before arrest on the plea of alibi can be considered. This is reported in 1975 SCMR 219. There are sufficient documents on record to show that applicant was present in Bahawalpur on the day of incident. Senior Advo­ cate of Bahawalpur filed affidavit in support of contention of appellant. It is therefore prima facie proved for the purpose of bail that plea of alibi has got substance and I am inclined to accept that the case of the present applicant requries further enquiry." From the perusal of this part of the order it is clear that the learned trial Judge while making observations on the alibi categorically stated that "there are sufficient documents on record to show that the applicant was present in Bahawalpur on the day of incident." By making this observa­ tion he virtually has given his findings on this point and exonerated the accused. This order will ultimately affect on the disposal of the entire case. So far as the allegations against the respondent are concerned, no doubt no overt act has been alleged against this accused in the F.I R. except that he caught hold of complainant. From the perusal of the police papers of the case, it appears that other prosecution witnesses, Salim Ahmad, Muhammad Rafiq, Shamim Ahmad, Abdul Aziz, Ghulam Nabi. Muhammad Yaqoob, Muhammad Ismail, Muhammad Yaseen and Fateh Muhammad, have stated in their statement that the accused Shakeeluddin Ahmad was armed with an iron rod and subsequently he jumped over the roof of the»house, and threw a cement block at the in­jured and deceased. Prima facie this shows that specific part has been assigned to this accused/respondent. The respondent is a government servant. This incident took place on 9-8-1983 but the respondent appeared for interim bail after about If months. Had he actually been in Bahawalpur on the day of incident, he should have immedia­ tely on his return appeared before the Court and prayed for bail or he should have appeared before the concerned Police Officer and informed him about the situation. On the contrary bis late appearance clearly shows that he intentionally absconded. The proper course for the learned Additional Sessions Judge was that while the making order for Interim Bail should have directed the respondent to appear before the police for investigation purpose and all those documents on which reliance was placed by the applicant have been forwarded to the concerned Invastigation Officer for accessary action. In the present case no such procedure has been adopted. The principles for the grant of bail before arrest have been laid down in a case of Murad Khan v, Fazal Subban and others reported in PU 1983 SC P, 7. In another case of Muhammad Sarwar v. State reported in 1983 SCMR 645 their lordships have held that bail before arrest is not the rule in the cognizable offences and it is to be allowed only when it can be shown that the applicant apprehends arrest due to some other ulterior motives on the part of the authorities or other influential persons which would justify the exercise of discretionary powers by the High Court or the Sessions. In the present case no such features are available for bail before arrest. Incident had taken place during the day time. The F.l.R. has been lodged immediately. Muhammad Shafi died while two other received injuries. Therefore prima facie case under section 302/397/34 P.P.C. has been made out. The bail granted to Shakeeluddin Ahmed is hereby cancelled and order f the Additional Sessions Judge is set-aside. There is also a point for consideration whether the Additional Sessions Judges are competent to grant the bail before.arrest. On this there are specific provisions in the Criminal Procedure Code by which Addtional Sessions Judges have jurisdiction and can take cognizance of the matters. Additional Sessions Judges can try only those cases which Sessions Judge by general or special order make over so them. Sub-section (2) of Section 193, Cr. P. C. reads as under :— "Additional Sessions Judges and Assistant sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the division by general or special order may make over to them for trial," Section 409 Cr. P. C. provides the procedure of disposal of appeal by the Additional Sessions Judges. Section 409 Cr. P. C. reads as under :— "An appeal to Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge. Provided that an Additional Sessions Judge shall hear only such appeals as the Provincial Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him." So far Revisional Jurisdiction is concerned may hear the Revisions in accordance with 439-A (2) Cr. P. C. which is as under : — "An Additional Sessions Judge shall have and may exercise all the power of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge " There is no provision iu Cr. P, C. for disposal of bail, application by the Additional Sessions judges. No doubt they can hear bail applica­ tions of the cases which have been transferred to them when accused is in custody. But so far bail before arrest and bail after arrest in the cases which are not on the files of Additional Sessions Judges, I am of the view that they cannot dispose of such matters until! and unless they are incharge of the Sessions Division. Under "High Court or Court of Sessions" have been incorporated whereby concurrent jurisdiction is given to High Court and Court of Sessions in this section when under Section 497, Cr. P. C. the Court having jurisdic­ tion to try the case and on other grounds Court can entertain bail application which also includes the Court of Additional Sessions Judge as trial Court. Under Section 17 (4) Cr. P. C. the Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make provi­ sion for the disposal of any urgent applications. Therefore bail applications! being of urgent nature could be disposed by the Additional Sessions Judges!,. when Sessions Judge is absent or incapable of dealing with these matters,! My view gets support from case of Mupal v. Ghulam and Others, reported) in P. L D. 1953, Lahore page, 110 where it has been held that Additional Sessions Judge does not become a Court of Sessions for the purpose of Section 498, Cr. P. C. unless the Notification appointing him as Additional contains a direction to that effect or until the Sessions Judge by a general or special order assigns any application or applications under that section to him. I am of the opinion that Sessions Judge can only transfer the application! under Section 498, Cr. P. C. to the Additional Sessions Judge when he islf incapable of acting or otherwise as provided under Section 17 (4) Cr. P. C.j Before parting with this order I feel, that observations made by learned! Additional Sessions Judge in his bail order will prejudice the case of prosecution. Therefore 1 suggest that Sessions Case No. 722/83 be tried by learned Sessions Judge, Karachi himself or he may transfer the same to other Judge. The observation in this order are of tentative nature and should not be taken into consideration at the time of deciding the case. It is open to the respondent to repeat application after his arrest if so advised. (TQM) fSic] Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 343 Present: RUSTAM S. SIDHWA, J Mat. KHURSHID BEGUM—Petitioner Versus Dr. MUHAMMAD RAFIQUE and 5 Others-Respondents Cr. Misc. No. 37-M/84, decided on 16-5-1984. (i) Criminal Procedure Code (V of 1898)— ——Ss. 561-A & 439-A—Revision—Judgment passed in—Quashment of —Sessions Judge dismissing revision petition filed by complainant in limine without (even) transferring appeal filed by convicts to his court and hearing such appeal side by side with revision — Held: Failure of Sessions Judge to deal with revision petition en correct legal principles having led to abuse of process of court impugned judgment to deserve to be quashed. [P. 347]D (ii) Practice & Procedure— Crininal courts—Appeals and revisions arising out of same judg­ ment—Hearing together of—Held : Practice generally adopted by criminal courts being to hear all appeals and revisions arising out of same judgment together and to pronounce judgment in such cases together, revision filed by complainant not to be dismissed in limine in advance but to be allowed to be heard of in limine on date fixed for arguments in main appeal—Acquittal in case occasioned because of failure of Prosecuting Inspector to bring on record proper evi­ dence—Sessions Judge, without causing transfer of appeal filed by convicted persons to his own Court and hearing such appeal side by side with revision, dealing with petitioner's revision singly—Held : Both appeal and revision to be heard together so that case of either party be not prejudiced. [P. 3461/4 (HI) Public Prosecutor—

Duty of—Allegations pnma facie making out case under certain sections of Pakistan Penal Code (XLV of I860)—Held : Public Prosecutor to be duty bound to see and ensure that all proper and documentary evidence be brought on record—Held further : Such duty not to be shifted on complainant (represented in case through counsel). [P. 34b]fl (it) Public Prosecutor—

Failure to conduct case properly—Effect of—Sessions Judge- Duty of—Held : Sessions Judge to see whether case properly con­ ducted by Prosecuting Inspector and all available order and documentary evidence be brought or record. [Pp. 346 & 347]C Agha Taj Muhammad, Advocate for Petitioner. Mr. Bashir Hussain Khalid, Advocate for Respondents No. 1. Respondents No. 2 & 3 in person, Date of hearing : 16-5-1984. JUDGMENT This is a petition under section 561-A Cr. P. C. by Mst. Khurshid Begum, petitioner, for the setting aside of the judgment of the learned Sessions Judge, Toba Tek Singh, dated 14-12-1983, whereby which the said learned Judge dismissed her revision petition in limine. Respondents No. 2 & 3 are present. Respondent No. 1 is represen­ ted. Salamat Ali, respondent No. 4, and Abdul Hamid, respondent No. 5, were previously declared proclaimed offenders by the trial Magis­ trate and the cases of the other three accused namely respondents No. 1 to 3 were bifurcated from them. Respondents No. 4 and 5 were actua ly not tried by trial Magistrate. Learned counsel for the petitioner requests for permission to delete their names as respondents from the record. The permission is granted accordingly and their names shall stand deleted. The brief facts of the case are that Muhammad Shafiq, who is the accused convicted in the case by the trial Magistrate, filed 3 suit for specific performance against Mst. Khurshid Begum, the present petitioner, with respect to an agreement for sale dated 15-8-1972 purporting to have been executed by the said lady in his favour agreeing to sell a shop to him which was located in her house. Mst. Khurshid Begum, the present petitioner, also filed a suit against the said Muhammad Shafiq, convicted accused, for the cancellation of the said document. On 6-11-1976, the suit of Mst. Khurshid Begum, the present petitioner, was decreed with compensatory costs and the suit of Muhammad Shafiq, convicted accused, was dismissed. An appeal preferred by Muhammad Shafiq, convicted accused, against the compensatory costs granted against him, but not against the main decree, was allowed and the compensatory costs were set aside. On an application being made by Mst. Khurshid Begum, the pre­ sent petitioner, before the Ctvii Judge for proceedings to be taken against Muhammad Shafiq, convicted accused, and others, with regard to the forged agreement for sale which had been used before him, the Civil Judge filed a complaint against Muhammad Shafiq, convicted accused, the pre­sent respondents No. 1 to 3 and the two proclaimed offenders before the Ilaqa Magistrate : Accordingly, notices were issued to Dr. Muhammad Rafiq, Abdul Hamid Kiani and Riaz Masih, respondents Nos. 1 to 3, and Salamat Ali, Abdul Hamid and Muhammnd Shafiq. Salamat Ali and Abdul Hamid were declared proclaimed offenders and later the case of the other accused was separated from theirs. Thus, the case proceeded against four accused persons and on 21-11-1983, the learned Section 30 Magistrate, Toba Tek Singh, convicted Muhammad Shafiq, but acquitted Dr. Muhammad Rafiq, Abdul Hamid Kiani and Riaz Masih, respondent Nos. 1 to 3. Muhammad Shafiq, convicted accused, preferred an appeal against his conviction and sentence and Mst. Khurshid Begum, the present peti­ tioner, filed a revision petition (No. 107-10-R of 1983) against the present respondents Nos. 1 to 3 and the two Proclaimed Offenders for the setting aside of their acquittal and for their retrial. Without taking up both the appeal and the revision petition together, the learned Sessions Judge, Toba Tek Singh, dismissed the revision in limine on 14-12-1983. It appears that the appeal preferred by Muhammad Shafiq, convicted, accused, is still lying pending in the Court of Mr. Ijaz Hussain Gilani, Additional Sessions Judge Toba Tek Singh. Baing aggrieved by the piecemeal disposal of her case, Mst. Khurshid Begum, the present petitioner, has filed the present petition under section 561-A Cr. P. C., for the quashment of the learned Sessions Judge's order. 4. On behalf of the petitioner it is submitted that at the trial, the Prosecuting Inspector did not produce Ahmad Khan Advocate, Abdul Rahman and Mst. Khurshid Begum, the present petitioner, who were the material witnesses in the case, to give evidence. He also did not prove or get exhibited affidavit Exh. A 1 of Abdul Aziz, deceased/petition writer, or the affidavit Exh. 47 of Abdul Hamid Kiani, petition writer/respondent No. 2, which affidavits were proved before the Civil Judge. He also did not prove or get exhibited the judgment dated 6-11-1976 given by the Civil Judge in favour of Mst. Khursbid Begum, the present petitioner. It is further submitted that the learned Sessions Judge should have heard both the appeal and the revision petition together and not piecemeal dealt with the petitioner's revision first in motion. In this connection it is stated that had both the appeal and the revision petition been heard together, the attention of the (earned Sessions Judge would have been directed to the fact that material oral and documentary evidence had not been brought on the record by the Prosecuting Inspector to bringhoine the conviction against respondents Nos. 1 to 3, which had occasioned a miscarriage of justice. It is further submitted that the learned Sessions Judge would also have come to the conclusion that the failure on the part of the Prosecuting Inspector to do his duty had placed the case of Shafiq, convicted accused, on a loose wicket, almost justifying his acquittal in appeal, which would not be the case, if the Prosecuting Inspector had performed his duty. 5. On behalf of the respondents it is submitted that the judgment of the learned Sessions Judge passed in revision has attained finality and that the same cannot be challenged under section 561-A Cr. P. C. unless the exercise of the jurisdiction under section 4^9-A Cr. P. C. has amounted to an abuse of process of the Court or the other conditions of the former section are satisfied. In this connection, learned counsel relies upon The State v. Altaf Hussain [PLJ 1978 Cr. C. ( Lahore ) 516 at 525]. 6. I have given my anxious consideration to this case. There cannot be any doubt that when Mst. Khurshid Begum, the present petitioner's revision petition (Cr. R. No. KP-10-R of 1983) was being heard and deci­ ded by the Sessions Judge, Toba Tek Singh, on 14-12-19S3, the appeal preferred by Muhammad Shafiq, convicted accused, was pending in the Court of Mr. Ijaz, Hussain Gilani. the learned Additional Sessions Judge, iToba Tek Singh. This is'also apparent from para. 7 of the learned Sessions (Judge's order. The practice generally adopted by Criminal Courts is to ear all appeals and revision petitions arising out of the same judgment [together and to pronounce judgment in these cases together. Where a ourt is in some doubt as to adm.tting a revision, the practice is not to ismiss the same in limine in advance, but to allow it to be heard in limine n the date fixed for arguments in the main appeal, so that both can be with together. No doubt, the rule is not absolute and there could [be cases in which the circumstances do not warrant that the said procedure .hould be followed, but in a case, such as the present, where a revision ition is filed and it is asserted that proper evidence was not brought on he record by the Prosecuting Inspector, which has occasioned the acquittal f certain accused or which may even lead to the acquittal of some who ave been convicted, the rule of propriety demands that both the appeal and the revision should be heard together, so that the case of either party is not prejudiced. Without causing the transfer of Muhammad Shafiq's appeal to his own Court and hearing the appeal side by side with the revision, the learned Sessions Jucjge dealt with the petitioner's revision singly, which has caused great prejudice to the petitioner. ?. In a criminal case instituted upon the complaint of a Civil Judge, where the Judge has filed allegations that certain persons have fraudulently and dishonestly produced and used a document before him which they knew or had reason to believe to be forged, which allegations prima facie make out a case under certain sections of the Pakistan Penal Code, it becomes the duty of the Public Prosecutor, as the representative of the State, to see and ensure that all proper oral and documentary evidence is Drought on the record. Such a duty cannot be shifted on the complainant party, who may also be represented in such a case through counsel. In the instant case, it was the duty of the learned Sessions Judge to have seen whether the Prosecuting Inspector bad properly conducted the case and whether all the oral and documentajry evidence, which was available, been brought on the record. If not, a duty was cast on the Sessions JudgeJ to decide whether a remand of the case was necessary in the circumstances.) 8. A perusal of the trial Magistrate's judgment shows that the Pro­ secuting Inspector only produced Malik Khadim Hussain, Civil Judge, to give evidence, who proved three documents Exh. PA., PB and PC, where after the Prosecuting Inspector tendered in evidence two documents, which he did not get exhibited, and closed the case. The whole case rests on the testimony of one witness and some documents. 9. From para. 8 of the Sessions Judge's judgment it appears that the learned Judge has dealt with the case on the principle that at the role of respondents Nos 1 to 3 was that of abettors and since they were not witnesses to the forged deed, they could not have abetted the offence. The learned Sessions Judge forgot that failure on the part of the Prosecuting Inspector to produce all the evidence had effected this very matter add could also effect the case of Muhammad Shafiq, convicted accused, who may perhaps be acquitted, if the evidence was wanting. It appears that the revision petition was not dealt with by the learned Sessions Judge onj correct legal principles, which, I am afraid, has led to an abuse to theL process of the Court and is otherwise also likely to lead to injustice.! The judgment of the learned Ssssions Judge, therefore, deserves to be' quashed. 10. For the foregoing reasons, this petition is accepted and the judgment of the learned Sessions Judge dated 14-12-1983 is set aside. The petitioner's revision petition (Cr. R. No. lO'-lO-R of 1983) is remanded back, so that the same may be heard and decided together with Muhammad Shafiq's appeal, which is presently pending before Mr. Ijaz Hussain Gilani, Additional Sessions Judge, Toba Tek Singh. Since the learned Sessions Judge, Toba Tek Singh, has already expressed his opinion on this revision petition, both the revision petition and the appeal should not be disposed of by him. 11. The learned Judge who shall hear and decide the revision and the appeal should not be influenced by any findings or observations given in this order. Note : The Registrar is hereby directed to place this judgment before the learned Acting Chief Justice, so that this attention may be drawn to the peculiar practice adopted by Malik Abdul Majid Tiwana, Sessions Judge, Toba Tek Singh, in not dealing with the appeal and revision petition, filed by the parties and arising out of the same judgment, together, but piece­ meal dealing with the revision petition first in motion and dismissing the same. In the instant case, the revision petition filed before the Sessions Judge alleged that the Prosecuting Inspector did not cause to be produced all the evidence before the Court, which was necessary in the circum­ stances, with the result that miscarriage of justice occurred and the respon­dents were acquitted. Instead of deciding both the appeal and the revision together, the learned Sessions Judge dismissed the revision petition piece­ meal in limine. The disposal of the revision petition piecemeal by the learned Sessions Judge caused prejudice to the petitioner. (TQM) Judgment quashed.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 348 Present: QURBAN SADIQ IKRAM, J MUHAMMAD NAWAZ—Appellant versus THE STATE—Respondent Cr. Appl. No. 279 of 1980, heard on 14-3-1984. (i) Pakistan Penal Code (XLV of I860)—

S. 302—Murder—Offence of—Evidence, appreciation of—Convic­ tion, basis for—FIR rightly and correctly recorded—Three of witnesses not supporting prosecution case—One P. W. (maternal cousin of deceased) fully supporting prosecution case—Medical evi­ dence fully supporting version of FIR—Recoveries of blood-stained hatchet etc. as well as motive to commit murder of deceased, belie­ ved—Prosecution, held fully proved its case against appellant by evidence of P. W. 5, recoveries from accused, motive and medical evidence—Conviction maintained. [Pp. 350, 351, 352,354 & ]A, B, C, D, E & H. (ii) Criminal Trial—

Witness—Related to deceased—Testimony of—Reliance—P W., maternal cousin of deceased, having no enmity with accused—Held : Mere relationship to be not enough to discard his testimony. (P. 350]0 (iii) Criminal Procedure Code (V of 1898)—

Ss. 544-A & 386—Compensation to the heirs of person killed etc. & warrant for levy of fine—Provisions regarding of—Court directing under S. 386 that in default of payment of fine, offender to be imprisoned—Held : In case of such offender having undergone whole of such imprisonment in default, no Court shall issue warrant and heirs of deceased would not be able to get anything out of fine imposed upon convict — Under S. 386 Cr. P. C. option given either to pay fine or to undergo further imprisonment—While under Section 544-A, no such option given — Provisions of Section 544-A Cr. P. C. being mandatory in nature, convict even if under­ goes imprisonment in default of payment of compensation, said amount to be recovered as arrears of land revenue—Omission to pass separte order under S. 544-A Cr. P. C. being illegal, separate order under mandatory provisions of S. 544-A Cr. P. C., held must be passed. [Pp. 352 & 353]F & G Messrs S. M. Latif Khosa and Nemat Khan, Advocates for Appellant. Mr. Sharif Butt, Advocate for State. Date of bearing : 14-3-1984. JUDGMENT Muhammad Nawaz, appellant aged 45 years alongwith his brother Muhammad Riaz was prosecuted for the murder of Ahmad Sher, their step brother, by the learned Additional Sessions Judge, Sargodha . vide judgment dated 13-1-80. Muhammad Riaz was acquitted but Muhammad Nawaz appellant was found guilty under section 302, P. P. C. and sen­ tenced to imprisonment for life and a fine of Rs. 20,000 (twenty thousand) or in default to three years R. I. It was ordered that if the fine is realised, the same be paid to the mother of the deceased. He has come up in appeal. 2. Before the commencement of hearing of the appeal, I found that the provisions of section 544-A Cr. P. C. have not been complied with. A notice of show cause was issued to the appellant as to why, in case his appeal is dismissed, he should not be burdened with compensation under section 544-A Cr. P. C. The learned counsel appearing on behalf of the appellant has accepted this notice. 3. The facts of the case are that Hadayat father of Muhammad Nawaz appellant and Ahmad Sher deceased had three wives. Ahmad Sber and Muhammad Nawaz were from different mothers. Ahmad Sher deceased had passed his F. A. examination and was w.orking as Operator n the Tube-well epartment. It was, for the reason that lot of money had been spent on the education of Ahmad Sher and because he was also an earning hand, his step brothers did not desire to give him ny share in the land. There was a dispute on this account two years before the present occurrence. However, on the intervention of the respectables, Ahmad Sher deceased had been given one tree by the accused in lieu of the wood that had been used by them for the construction of Dera. Besides this, Ahmad Sher had married about 5/6 days before the present occurrence against the wishes of Muhammad Nawaz and his brother Muhammad Riaz. It is alleged that on 1-10-78, at about 3-00 p. m., Ahmad Sher was cutting branches of the said keeker tree.. The two accused Muhammad Nawaz appellant armed with hatchet and his brother Riaz came there. They challenged Ahmad Sher deceased. Riaz pulled down Ahmad Sber deceased from the tree and caught hold of his legse. Thereafter Muhammad Nawaz gave him hatchet blows which fell on his neck, cheeks and other parts of the body. Ahmad Sher deceased was then dragged to a nearby cotton field. The alarm attracted Ghulam Jafar P. W. 2, Muhammad Ramzan P. W. 3, Ghulam Farid P. W. 5 and Muhammad P. W. 4. The accused then left the spot while Ahmad Sher, as a result of the injuries, died there. After registration of the case, the police undertook investi­ gation. Both the accused were arrested on 3-10-78. Muhammad Nawaz appellant at the time of his arrest, was wearing turban P. 2, and chaddar P. 3. These two clothes were found to be blood stained and taken in possession by Tajammal Hussain S. H. O., P. W. 17 vide memo. Ex. P. E. in the presence of Abdullah P. W. 11 and Nawaz P. W. 12. On that very day he also led the police and got recovered blood stained hatchet P. 1 which was taken in possession by S. I. Tajammal Hussain P. W. 17 vide memo. Ex. P. D. in presence of the same witnesses. This hatchet was found to be stained with human blood vide report of Chemical Examiner. Ex. P. K. and that of Serologist Ex. P. L. It appears that turban P. 2 and chaddar P. 3 were not sent for examination. 4. In support of the case, the prosecution examined 17 witnesses in all. P. W. 2 Ghulam Jafar who had lodged the F. T. R. and was a step nephew of the deceased did not support the prosecution. Similarly, P. W. 3 Muhammad Rarazan father-in law of the deceased and P. W. 4 Muhammad (not related) also did not support the prosecution case. The case, there­ fore, rests on the statement of Ghulam Farid P. W. 5 (maternal cousin of the deceased), recoveries of hatchet P. 1, turban P. 2, chaddar, P. 3, motive and the medical evidence. Ghulam Farid P. W. has supported the prosecution case in toto. 5. When examined under section 342, Cr. P. C., the accused denied the charge and stated that he has been falsely implicated by Ghulam Farid and his local opponents. He, however, did not lead any evidence in defence. 6. I have heard the learned counsel for the appellant and the State. It has been submitted by the learned counsel for the appellant that Ghulam Jafar P. W. 2 has resiled from his statement on the basis of which the F. I. R. was recorded ; that the three alleged eye-witnesses have not sup­ ported the case ; that the medical evidence does not support the ocular evidence ; and finally that the recoveries from the accused cannot be relied upon because Abdullah P. W. 11 has not supported the prosecution case re­ garding the recoveries while P. W. 12 Nawaz has also made admissions in favour of the accused. ?. I have considered the arguments. So far as the first point is concerned, Ghulam Jafar P. W. 2 when examined in Court esiled from his statement in the F. I. R. It was stated by him that the F. I. R. was lodged by him and that the F. I. R. bears his thumb impression but added that he did not make the statement which forms part of the F. I. R.. He was declared hostile by the Public Prosecutor and duly confronted with the F. I. R., Ex. P. B. It was stated by S. I. Tajammal Hussain P. W. 17 that he had correctly recorded the F. I. R on the statement of Ghulam Jafar P. W. 2. It appears that Ghulam Jafar has been won over by Muhammad Nawaz accused. He has resiled from his statement made in the F. I. R. for that reason. The contents ofF. I. R. were duly put to him and he was confronted with the said statement. I am not prepared to believe that the Sub-Inspector Tajammal Hussain recorded different facts than those •alleged to have been stated by Ghulam Jafar P. W. I, therefore, hold that ^Ithe F. I. R. was lodged by Ghulam Jafar P. W. 2 and that it was correctly Irecorded by S. I. Tajammal Hussain. It is correct that three of the witnesses did not support the prosecution case. It appears that Hadayat father of the deceased had three wives. The whole family is divided in various groups. At one stage the witnesses supported the prosecution but now they are siding with Muhammad Nawaz. They were declared hostile. Ghulam Farid P. W. 5 who is a maternal cousin of Ahmad Sher deceased has fully supported the prosecution case. He is no doubt related from the maternal side with Ahmad Sher deceased but mere relationship is not enough to discard his testimony. He has got no enmity with the accused. A suggestion was put to him during crossexamination that he was a party-man of Qureshis who were inimical to­ wards Syed Inayat Ali Shah of Jehanian Shah. He further admitted that the accused are his opponents in the party faction of village. It will be noticed that no details of this alleged party faction were put to this wit­ ness. The party-faction between Nawaz Lebri and Qureshis is far fetched. There is nothing to indicate that this witness »vn« influenced by this party faction to falsely implicate Muhammad Nawaz appellant. I find that he . is reliable witness. 8. The medical evidence discloses the following injuries on the person of the deceased :— 1. An incised wound 3" x 1° X bone underneath cut on front of neck cutting all tissues upto bone. 2. An incised wound 2V x 1" x bone underneath cut on right cheek l above the angle of mandible. 3. An incised wound 3" X i" X ¥ on left side of neck 1" below the ear directed from behind forwards. 4. An incised wound 1" x V 1 x clavicle bone underneath cut on left side of front of chest upper part. 5. An incised wound f" x 1" x j" on left supraclavicular region in line with No. 4. 6. Multiple abrasions on back of right buttock over an area t" x 3". It was further stated by Dr. Muhammad Azim that skull was partially cut under injury No. 1. Right clavicle was cut and ribs were healthy. Larynx and trachae were cut under injury No 1 All blood vessels were cut under injury No. 1. Oesophagus was cut under injury No. 1. The above description of injuries fully support the version of the F. I. R. which in the circumstances of the present case has become a sub-lc stantial evidence as well as P. W. 5 Ghnlam Farid. According to the! F. T. R. as well as P. W. 5 Ghulam Farid, the deceased was dragged fromj the place of occurrence to a nearby cotton field. There were multiple abrasions on the back of right buttock. The multiple abrasions fully sup­ port the version of dragging the deceased. Then there is the evidence of recoveries. Abdullah P. W. 11 did not support the prosecution but Muhammad Nawaz P. W. 12 fully supported the factum of recovery at the instance of Muhammad Nawaz appellant. He is an independent witness and there is no reason to disbelieve this witness. In cross-examination, he stated that his cousin Gul Muhammad won the recent local council election and the accused party favoured them. In the latte, part of the cross examination he made some concessional admissions in favour of the accused pertaining to the lodging and recording of the F. I. R. I am not prepared to believe this part of his evidence. This part of his evidence does not pertain to the recoveries from the accused. These are mere con­ cessions made by a forma! witness and are of no help to indicate innocence! of the accused. I rely on the evidence of Nawaz and S. I. TajammalLj Hussain P. W. 17 regarding recoveries of hatchet P. 1, turban P. 2 andl chaddar P. 3. 7. Then there is the evidence of motive against the appellant Muhammad Nawaz. The appellant had a motive to murder Ahmad Sher who was demanding his share in the property and who had married against the wishes of the appellant 8. In my upmion the prosecution case is fully proved against the E appellant Muhammad Nawaz by the evidence of P. W. 5 Ghulam Farid, recoveries from the accused, motive and the medical evidence. The appeal is, therefore, dismissed. 9. As stated earlier I had issued a notice to show cause to Muhammad Nawaz appellant as to why in case his appeal is dismissed he should not be burdened with compensation under section 544-A Cr. P. C. This notice was accepted by the learned counsel for the appellant. 10. I have seen during the last few days many appeals in which the trial courts imposed sentence of imprisonment and fine on the accused after their conviction. The orders usually recorded in such like cases are that if fine is recovered, the same shall be paid to the heirs of the deceased. No separate order under section 544-A Cr. P. C. is passed by the trial Courts. I am of the opinion that this omission is illegal and separate order under the mandatory provisions for payment of compensation must be passed. A perusal of section 386 Cr. P. C. would indicate that if the Court directs that in default of the payment of fine the offender shall be mprisoned and if such offender has undergone the whole of such imprison­ ment in default, no Court shall issue warrant. This means that if in a particular case, the convict decides not to pay the fine and undergoes imprisonment in default thereof, the fine could not be recoveied. It would result that the heirs of the deceased would not be able to get anything out of the fine imposed upon the convict. It was for this reason that the Courts sire duty bound to follow the mandatory provisions of law con­ tained in section 544-A Cr. P. C. If the trial Court in any particular case is of the view that no compensation should be imposed upon the convict for payment to the heirs of the deceased, then the trial Court must give its reasons for not doing so. There is clear difference of purpose and objects of two sections i. e. section 386 and section 544-A Cr. P. C. These sections are reproduced below :— "386. Warrant for levy of fine. —(I) Wherever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may : (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender ; (ft) issue a warrant to the Collector of the District authorising him to release the amount by execution according to civil process against the movable or immovable property, or both, or the default : Provided that, i f the sentence directs'that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant. (2) The Provincial Government may make rules regulating the manner in which warrants under sub-section (1), clause (a) are to be executed, anc| for the summary determination of any claim made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Courts issue a warrant to the Collector under sub­ section (I) clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall, apply accordingly ; Provided that no such warrant shall be executed by the arrest or detention in prison of the oifender.'' "544-A, Compensation to the heirs of the person killed, etc. — (1) Whenever a person is convicted of an offence in the commission whereof the death of or hurt, injury, or mental anguish or phychological damage to, any person is caused, or damage to or loss or destruction of any property is caused, the court shall when convicting such person, unless for reasons to be recorded in writ­ing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or pbychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the court may determine having regard to the circumstances of the case ; and (2) The compensation payable under subsection (1) shall be recoverable as an arrear of land revenue and the Court may further order that, in default of payment or of recovery as afore­ said the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceed­ ing thirty days. (3) The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted, (4) The provisions of sub-sections (2-B), (2-C), (3) and (4) of ection 250, shall, as far as may be, apply to payment of compen­ sation under this section. (5) An order under this section may also be made by an appel­ late Court or by a Court when exercising its powers of revision." A study of those sections brings out the difference between the two. Under section 386, Cr. P. C., if an accused on conviction is sentenced to pay fine and if the sentence directs that in default of the payment of fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant. This means that the option is given to the convict to pay or in default of tbe said payment of fine to undergo imprisonment. If he opts to undergo imprisonment in default of payment of fine, then the same could not be recovered by issue of warrant by attachment or issue of warrant to the Collector of the District. I find section 544 A Cr. P C. uses the words compensation to the heirs of the person killed etc." It has been held in a large number of cases by the Supreme Court of Pakistan that the provi­ sions of section 544-A Cr. P. C. are mandatory. Under this section even if the convict undergoes imprisonment in default of payment of compen­ sation, then also the said amount could be recovered as arrears of land revenue. 11. In view of the above discussion, the conviction of the appellant Muhammad Nawaz is maintained under section 302, P. P. C. He is sen­ tenced to imprisonment for life and a fine of Rs. 5,000 (five thousand) or in default to undergo three years R I. He is directed to pay compensation of Rs 15,000 (fifteen thousand) under section 544-A Cr. P. C. to the mother of deceased and in default to undergo six months R. I. Muhammad Nawaz appellant shall be given benefit of section 382-B Cr. P. C. for com­ puting his sentence in prison. (Aq. By.) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. (Peshawar) 354 (DB) [Abbottabad Circuit Bench] Present : ABDUL KHALIQ KHAN & ABDUR REHMAN KHAN KAIF, JJ THE STATE through ADVOCATE GENERAL, N.-W.F.P.-AppcUant versus ABDUL AZIZ and 2 Others—Respondents Cr. Appl. No. 11/1978, decided on 21-5-1984. (i) Criminal Procedure Code (V of 1898)—

S. 417—Acquittal—Appeal against—Principle governing—Acquit­ tal resting wholly on direct evidence of witnesses—Held : Much importance to be given to rule that benefit of every doubt must go to accused person—Held further : View of facts or conclusion formed by trial court though not binding on court of appeal, evidence when read fairly and grounds of doubt formulated when not perverse, wholly illogical or unreasonable, findings of trial court not to be reversed on clear risk of departure from rule of benefit of doubt. [P. 368]A PLD 1964 SC 422 & PLD 1967 Kar. 440 rel. (ii) Criminal Procedure Code (V of 1898)—

S. 417—Acquittal— Appeal against— Accused securing acquittal from trial court — Held : Inference of guilt unless conclusively shown to be irresistible, no interference to be made by appellate court. [P. 359]C (iii) Criminal Procedure Code (V of 1898)—

S. 417—Acquittal—Appeal against—Grounds on which trial court based acquittal not shown to be unreasonable, unsound or manifestly wrong—Acquitted accused also not proved to be guilty of commis­ sion of offence to satisfaction of High Court—Held : Appeal against acquittal to have no force. [P. 459]F & G (ir) Criminal Trial— ——Accused—Presumption of innocence regarding—Held : Accused to be presumed to be innocent until case against him be made beyond reasonable doubt. [P. 359]fl (r) Criminal Trial

Witness—Testimony of — Improvements — Effect of — Accused charged in FIR to have prompted co-accused to do away with victim —Report, however, remaining silent on action taken on such 'command'—Held : Improvement made in court statement to make no change but to make testimony of witnesses unreliable. [P. 359]Z> (vl) Judicial Notice— ——Charge—Tendency to rope innocent alongwith guilty—Tendency in N.-W P.P. to include innocent alongwith guilty when making charge (especially in cases arising out of blood-feud) by ascribing principal port in offence to actually guilty ones and minor to their innocent relatives—Judicial notice taken of—Evidence Act (I of 1872)—Ss. 56 & 57. [P. 359]£ AIR 1935 Pesh. 35 ref. (?ii) Eridence^Act (I of 1872)—

Ss. 56 & 59—See : Judicial Notice. Khawaja Nazir Ahmad, A. A. G. for State. Mufti Mohammad Idn's, Advocate for Respondent No. 3. Date of hearing : 21-5-1984. JUDGMENT Abdul Khaliq Khan, J.—The State being aggrieved by judgment dated 18th of January, 1978 of the learned Sessions Judge, Abbottabad in Sessions Case No. 14/t$ of 1977 by which Abdul Aziz, Shaukat and Abdul Haraid, respondents were acquitted of the charge under section 302/34 P.P.C. for murder of Abdur Rafiq, has filed this acquittal appeal. 2. The prosecution story as stated in the F.I.R. Ex. P. A. lodged by Mst. Zuhra Jan widow of Abdul Momin resident of Dheri Sikanderpur. Police Station Haripur is to the effect that 3/4 months prior to the occur­ rence, the deceased was employed by the first informant on monthly pay of Rs. 100/-. On the day of occurrence, the deceased was plucking fruit from the plum tree when there appeared the three accused named, above, armed with guns. No sooner they reached near Abdur Rafiq, Abdul Aziz fired the first shot with which he (Abdur Rafiq) was hit and injured. There­ after, Shaukat fired and then Abdul Aziz fired for the second time. Abdur Rafiq was hit and expired instantaneously. Abdul Hamid accused prompted his companions to finish him so that he is not able to give statement against them. The motive of the offence was reported to be previous enmity between the families of the informant and the accused. 3. After recording the report, Amanullah Khan S. I. (P.W. 8), then S.H.O. Police Station Haripur started for the scene of occurrence at a distance of nearly one mile. He reached the spot and found the dead body of Abdur Rafiq lying there. He prepared the injury-sheet Ex. P.W. 1/2 and inquest report Ex. P.W. 1/3 and sent the dead body to the local mortuary for post-mortem examination under the escort of Shamroz F. U. (P. W. 3). He inspected the spot and prepared the plan Ex. P. W. at the pointation of the P. Ws. He took into possession basket containing plums, Ex. P. W. 8/1 vide memo. Ex. P. W. 4/2. He also recovered blood-stained earth from the scene of occurrence. 4. On the same day, a S. B. shot gun Ex. P. 6. 25 cartridges Ex. P. 7, a bandolier Ex. P. 6 and 4 empties of .12 bore Ex. P. 9 alongwith a copy of licence Ex. P. 10 were recovered from the house of Abdul Hamid accused and taken into possession vide Memo. Ex. P.W. 5/1. 5. Shamroz F. C. (P. W. 3) referred to above, on his return from the mortuary, handed over I/O the clothes of the deceased consisting of shirt Ex. P. 1. shalnar' Ex. P. 2, Jacket Ex. P. 3, all blood stained along­ with a a parcel Ex. P, 4, containng pellots. He took them into his posses­ sion vide Memo. Ex. P. W. 3/1. The blood-stained articles were sent for examination of the expert. The report of the Chemical Examiner is Ex. P.W. 8/3 and that of the Serologist Ex. P. W. 8/4, 6. Dr. Saeed, Medical Officer, Civil Hospital, Haripur conducted post-mortem examination on the dead body of the deceased at 4-,45 P.M. on 9-6-1976 and found the following :— External Examination (1) Fire-arm entrance wound 1" x 3/4" going deep 1' behind the right anterior superior iliac spino fracturing the breast of the iliac bone. (2) Numerous small fire-arm wounds each 1/8" x 1/8 on the front of right abdomen in an area of 6' x 6'. (3) Numerous fire-arm wounds each 1/4" x 1/4" on low back lower part of chest on back and upper part of hips in an area of 10"xlO". (4) Numerous small fire-arm wounds 1/8" x 1/8" each on the outer surface of right upper arm in an area of 2^"x2 ff — 2" below the top of shoulder. A pellet weighing 5 grains lodged in muscle on the front of upper arm in the middle 3-£" below the apex of the armpit taken out. (5) Fire-arm entrance wound on the front of lower part of right chest 1/4X 1/4 going deep 2" to the right of midline of the body and 6" below the nipple. (6) Lacerated wound caused by fire-arm 3" behind the lower part (louble) of the right ear and 2\" above the top of right shoulder. A missile 1/4 long 3/4 at its widest part and weighing 36 grains found lodged deep in the muscle of the right neck. 4j" below the neck recovered. (7) A fire-arm enterance wound 1/2" and going deep on left tampie 1" in front of upper part of the left ear. (8) A fire-arm exit wound 2x2" and 4 behind the upper part of right ear and 6^" above the top of right shoulder. On internal examination he found the scalp, skull injured. Left temporal bone and right portion of occipital bone in the upper part fractured. Membrance and brain was found injured. 7. On completion of the investigation, challan was put in court against the accused. They were formally charged which they denied and claimed trial. 8. The production produced Mst. Zuhra Jan (P. W. 6) and Farman (P.W. 7) who gave ocular account of the occurrence. It also got examined the doctor, who had conducted the post-mortem examination and Amanullah Khan (P. W 8) who had not only recorded F.I.R, but also carried out the investigation. Other witnesses were also examined but their evidence is more or less of formal nature. 9. The learned trial court taking into consideration, the evidence adduced before it, acquitted the respondents named above by the impugned judgment and consequently the State has filed this acquittal appeal on the grounds mentioned in the memorandum of appeal. 10. Having admitted the appeal for hearing on 28-6-79 on the ground that the evidence required re-appraisal, bailable warrants each in the sum of Rs. 10.000/- with two sureties each, were issues against the respondents. Despite efforts, except for Abdul Hamid, the service of the co-accused could not be effected. On 10-7-83, the statement of Said Khan A.S.I, was recorded in this connection. According to him, Abdul Aziz and Shaukat, the co-accused have dis-appeared from their village and that there was no possibility in the near future of their arrest. The court therefore, passed an order that as the said acquitted accused were avoiding service, therefore, perpetual warrants of arrest be issued against them. However, the case against respondent No. 3 be heard separately. Consequently, in the present appeal under section 417 Cr. P.C. we are concerned with State Appeal against the acquitted accused namely, Abdul Hamid. 11. Before we discuss the merits of the case, brief reference to the general principles which are always taken into consideration while dealing with the acquittal appeals appear necessary. In that respect it will be useful to refer to the observations of a D.B. in the case State v. Amir AH and others (PLD 1967 Karachi 440) :— "We must keep in mind the basic doctrine of the Privy Council reported in AIR 1934 Privy Council 227 (2) in this connection. This finding has been followed with approval by our Supreme Court thereafter. In deciding an appeal against acquittal what is to be borne in mind is :— (1) The views of the trial Judge as to the credibility of the witnesses. (2) The presumption of innocence in favour of an accused, a pre­ sumption certainly not weakened by the fact that he hasj been acquitted at his trial. (3) Right of an accused person to the benefit of any doubt. (4) The alowness of appellate Court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". 12. In setting a«ide an acquittal in a case, which rested wholly on direct evidence of witnesses as much importance is to be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. Of course, a view of facts or the conclusion therein formed by the trial court is not binding on court of appeal. Equally, a Conclusion by a Judge may be reversed where it has led to acquittal. But where he has read the evidence fairly and has formulated ground of doubt, which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of benefit of the doubt in reversing his findings (PLD 1964 SC 422). 13. Having dealt with the general principles of law applicable to appeal under section 417 Cr. P. C. we may now take up for consideration the evidence, to connect the accused with the commissiqn of the crime. 14. We have already referred to the F.I.R. Ex. P.A. which was lodged within an hour after the occurrence wherein though Abdul Hamid, the accused before us, is stated to have prompted his companions to finish the deceased but as far as this document is concerned, there is nothing to show that any action was taken on this direction. It has been categori­ cally admitted by Mst. Zuhra Jan in her cross-examination that out of the accused Hamid did not fire. Similarly Farman the other eye-witness has not attributed any active role to the accused before us. Let it be made clear that we will not express any opinion with regard to the part attributed to the other acquitted accused as it has to be reapprised when the appeal against them is to be heard after their arrest. 15. As far as the charge of lalkara is concerned, it has been held in Abdul Aziz v. Bashir Ahmed (.PLD 1966 SC 658), that :— "Mere raising 'Lalkara' of the accused person in a case of murder was not sufficiently incriminating so as to constitute the basis of conviction for abetment". This petition was no doubt elaborated in Chiragh Din case (PLD 1967 SC 340), where it was observed by their Lordships that the precedent case is not to be read as laying down that lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. The question must be decided by the trial Court on an appreciation of all the facts including the degree of interest in the crime possessed by the person who shouted the lalkara, and the part he played in the bacfc ground of the affair. There are circumstances in which mere presence at the scene of the crime in a sufficient overt act to support a conviction by the application of section 114 P. P C. Shouting of a lalkara may, in such circumstances, have effect as a further overt act of abetment. It is not possible, without a full apprecia­ tion of the evidence relating to the background of a crime and its actual commission, to say that proof of a person shouting a lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime. 16. In the instant case as put forth at the earliest, no active role has been attributed to the present acquitted accused. Even it was not alleged that his prompting resulted in any further action. The subsequent improve­ ment in court statements in this connection would be of no help to the prosecution. On the other hand, as the law is, the accused starts with double presumption in his favour. Firstly, that there is a view that it is for the prosecution to make out its case and until it does so beyond reason able doubt, accused must be presumed to be innocent and secondly, the accused having succeeded in securing an acquittal from the court, the appellate court will not interfere until the appellant shows conclusively that the inference of guilt was irresistible. No such inference, however, can! be drawn, on the basis of available evidence. 17. Stress was laid by the learned Assistant Advocate General on section 34, P. P. C. It was urged that in the facts and circumstances of the case, common intention of the present respondent with the co-accused to finish the deceased is apparent, therefore, he was liable for murder as his co-accused. We are not impressed by this argument for the reason that evidence to implicate the accused before us lacks consistency. We have noted above, that the accused was charged to the F. I. R. to have promp­ ted his co-accused to do away with the victim so that he does not remain alive lo give evidence against them. However, there is nothing in the report to show that any action was tahen on his 'command'. The improve­ ment made in court statement's will bring no change, but would make their testimony unreliable. We are not unconscious of the fact, that there is a tendency in this part of the country to include innocent alongwith the guilty when making charge, especially in cases arising out of blood-fued and another general ground is the tendency of person to ascribe the princi­ pal part in an offence to the person/persons who are actually guilty and minor part to their innocent relatives as observed in Khaista Khan v. Emperor (AIR 1935 Peshawar 35). 18. Keeping in view of the evidence and the law on the point, we are of the view that the prosecution has failed to prove to our satisfaction that the acquitted accused before us was guilty of the commission of the offence. It may also be necessary to state that the said accused has no direct enmity with the opposite party, no doubt, he is relation to the other accused. Therefore, if he could be charged for a hand in the murder, there are equal chances that he has been roped in because of his relation­ ship with the co-accused. The prosecution has further failed to prove that the grounds on which the trial court had based acquittal of the present accused were unreasonable, unsound for manifestly wrong. 19. In result of the above discussion, we do not find any force in thei appeal by the State against Abdul Hamid, acquitted accused and thereforejc will order its dismissal. (TQM) Appeal dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 360 Present : IJAZ NISAR, J ALLAH RAKHA—Petitioner versus THE STATE—Respondent Criminal Misc. No. 959-B/1984, decided, on 29-5-1984. (i) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498—Bail—Grant of—Investigating Officer—Opinion of—Relevancy of—Held : Opinion of Investigating Officer though not binding, same to put court on enquiry as to guilt of petitioner. [P. 360] A 1984 SCMR 429 & 1972 P Cr. LJ 1192 re!. (ii) Criminal Procedure Code (V of 1898)—

S. 498—Bail—Grant of—Investigating Officer—Opinion of—Effect of—Two of co-accused found falsely implicated and got discharged by police—Petitioner also found innocent in investigation carried out by police— Held : Opinion of Investigating Officer being apparently not dishonest or mala fide, application for bail to be granted. [P. 361] B , Dr. Khalid Ranjha, Advocate for Petitioner. Mr. Aziz Qnreshi, Advocate for State. Date of hearing : 29-5-1984. ORDER The petitioner alongwith 5 others stands charged with the murder of Ali Ahmad deceased on 27-9-1983 with a fire-arm. 2. Bail is pleaded on the ground that two of the co-accused were found to have been falsely implicated and have been got discharged by the police. The petitioner has also been found innocent in the investigation carried out by Zamurd Khan, Inspector who came to the conclusion that the deceased was holding his licenced revolver which went off accidently, resulting in his death and that the complainant party got a false case registered due to election rivalry. He, however, observed that in the presence of solid evidence furnished by the prosecution the matter be left to the decision of the Court. 3. I have enquired from the Inspector as to the basis of his opinion. According to him he has examined a number of persons to reach the conclusion and also conducted open and secret enquiries. 4. It is a well-settled proposition that the opinion of the Investiga- Iting Officer though not binding on the Court yet puts the Court on enquiry las to the guilt of the petitioner. In Mohammad Afzal v. Nazir Ahmad and lothers (1984 S.C.M.R. 429) it was observed that "the relevancy to the question of bail on the opinion of the Investigating Agency in regard to the complicity of an accused person will depend on the soundness of the material upon which it is based, if the investigation brings to light the facts which may furnish a reasonable ground for believing that an accused though named in the F.I.R. is not guilty, the opinion of the Investigating Officer based on such facts will be relevant." In Manzoor Ahmad v. Mauoor Ahmad and 8 others (1972 P. Cr. L. J. 1192) it was observed that if the Investigating Agency which is an important instrument of state for the purpose of prosecuting offender, itself is not willing to say that the accused is guilty, then unless there are strong circumstances otherwise so as to come to another reasonable conclusion on the Court should not discard such a conclusion for the purpose of bail. to doubt at this stage the opinion of thci to say that it is dis-honest or malafide.\ g Consequently, I grant the application and admit Allah Rakha petitioner tol bail in the sum of Rs. 20.000/- (Twenty thousand) with two sureties in the| like amount to the satisfaction of A. C. Daska. (TQM) Bail allowed.

tU 1984 Cr tU 1984 Cr. C. ( Lahore ) 361 Present : QURBAN SADIQ IKRAM, J MAHMUD ALI—Appellant versus THE STATE—Respondent Criminal Appeal No. 76 of 1973, decided on 13-5-1984. Prerention of Corruption Act (II of 1947) —

S. 5 (2) read with Pakistan Penal Code (XLV of I860)—S. 161— Illegal gratification—Acceptance of—Offence of—Conviction for—­ Neither passing of tainted money seen nor talk between complainant and accused heard by raiding party—Requisite copy of certificate also already delivered many days before raid—Held : Case against appellant having not been proved, appeal against conviction and sentence to be accepted. [P. 362] A & B Ch Muhammad Vamecn, Advocate for Appellant. Mr. Abbas Sukhera, Advocate for State. Date of hearing : 17-5-1984. JUDGMENT Mahmood Ali appellant, a Secretary of Union Council, Dharamke Lalke was convicted by learned Special Judge, Anti-Corruption by order dated 31-1-73 under section 161 P. P. C. read with section 5 (2) Prevention of Corruption Act, 1947 and sentenced to six months R.I. He has come up in appeal. 2. The precise charge against Mahinood appellant was that he demanded Rs. ISO/- but agreed to receive Rs. 90/- as illegal gratification for supplying copy of the divorce certificate Ex. P. C. to Allah Ditta P.W 1. It is alleged that out of this Rs. 90/-, the appellant received Rs. 40/- as illegal gratification on 26-12-1968 and received Rs. 50/- on 3-1-1969 when he was arrested in a raid organised by Anwar AH P. W, 3 and supervised by Mr. Imtiaz Ahmad Sadiq P. W. 2. 3. During the trial, the prosecution examined Allah Ditta P. W. 1 who stated that he had lodged the F. I. R. Ex. P. A. on 3-1-1969 as he did not want to pay Rs 50/- as bribe to the appellant. It was stated by him that on 3-1-1969, he contacted the accused in the office of Union Council to pay him bribe of Rs. 50/- but the accused asked him to go to the Tehsil Office where he will receive the amount. The accused came to the Tehsil Office but again did not receive the money and asked the complainant to reach the gate of the Mills and that he will receive the amount there. It is alleged that Allah Ditta paid him the tainted money of Rs. SO/- near the Mills gate whereafter the raiding party surprised the accused after having received signal. Mr. Iratiaz Ahmad Sadiq. Magistrate P. W. 2 stated that he supervised the raid, signed the tainted money which was later recovered from ihe accused. Anwar AH P. W. 3 organised the raid, investigated the case and after receipt of sanction for prosecution Ex. P. L. challaned the accused. 4. The accused denied the charge and produced Ghulam Hussain D. W. 1 and Sardar Ali D. W. 2 in defence. Ghulam Hussain D W. I only stated that Allah Ditta P. W. paid Rs. SO/- to Mahmood Ali but did not disclose the nature of that. Sardar Ali D. W. 2 produced the register which contained entry Ex, D. W. 2/A-l showing that the copy of divorce certificate had been received by Allah Ditta P. W. on 7-12-1968. 5. I have heard the learned counsel for the appellant and the State. It is contended by the learned counsel that the copy of certificate of divorce Ex P. C. had already been received by Allah Ditta complainant on 7-12-1968 and as such, there was no reason or occasion for Mahmood Ali appellant to receive illegal gratification. Relying on P. L. D. 1979 Karachi 255 and 1972 P. Cr. L. J. 836, learned counsel argued that the Supervising Magistrate and the raiding party did not see the passing of tainted money by Allah Ditta complainant to Mahmood Ali accused nor did t^ey hear the talk between the two at the time of passing of the money. It was, therefore, contended that it cannot be said that the accused allegedly received the said amount as illegal gratification. 6. I have considered the above arguments and find that the prosecu­ tion has failed to prove its case against the appellants. The copy of certificate of divorce had already been delivered to Allah Ditta on 7-12-1968 i.e., many days before the raid and as such the question of receipt of illegal gratification did not arise. The fact that the raiding oarty did not see the passing of tainted money and did not hear the talk between the complainant and the accused, also makes the case against the appellant doubtful. 7. In view of the above discussion, this appeal is accepted and the 8 appellant Mahmood AH is acquitted. The appellant is on bail. He is discharged of his bail bondi. (M1Q) Appeal accepted.

PLJ 1984 Cr: C PLJ 1984 Cr: C. (Lahore) 363 Present : QURBAN SADIQ IKRAM, J MUHAMMAD ALI—Petitioner versus AMJAD HUSSAIN CHUGHTAI and 2 Others—Respondents Criminal Misc. No. 886-B/I984, decided on 14-5-1984, (i) Criminal Procedure Code (V of 1898)—

S. 497(5) read with Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—S. 11—Abduction—Offence of—Bail-Cancellation of—Accused — Conduct of—Relevancy of—Abductec never free agent at time of her appearances in Courts—Respondents being influential persons not only avoiding her statement to be recorded as free agent but also frustrating all orders of Courts directing her second statement under S. 164, Cr. P. C.—Respondents also avoiding their own presence in court and appearing to have no respect for orders of Court—Held : Conduct of respondents (in with­ holding evidence in form of independent statement of abductee) being not only illegal but also in clear violation of directions of High Court, bail (before and after arrest) allowed by Additional Sessions Judge to be cancelled. [P. 36&]A, B&C PLJ 1984SC 56 ref. (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. II— See : Criminal Procedure Code (V of 1898)—S. 497 (5). Mr. Zaka-ur-Rehman, Advocate for Petitioner. Sh. Mohammad Nawaz, Advocate for the State. Messrs : Rafiq Ahmad Bajvra, Shaukat Rafiq Bajvra & S. M. Idrees, Advocates for Respondents Nos. 1 to 3. Date of bearing : 14-5-1984. ORDER This is an application by Muhammad Ali complainant against Amjad Hussain, his father Fazal Hussain, and brother Arshad Hussain, for cancellation of their bail granted by the learned Additional Sessions Judge, Lahore , by order dated 31-3-1984, in a case pertaining to F. I. R. No. 22 dated 14-3-1984 under section 11 of Ordinance No. VII of 1979, Police Station Race Course Road , Lahore . It was alleged in the F. I. R. by Muhammad Ali that Mst. Zahida Parveen aged 16 years was his daughter studying in a school in Misri Shah. Amjad accused used to tease her on her way to school and back home. Zahida complained to her father Muhammad Ali complainant-petitioner against the attitude of Ajmad Hussain accused. Muhammad Ali protested to Fazal Hussain, father of Ajmad accused. It had no effect. It is stated that in order to save his honour and any possible miship he (Muhammad Ali) shifted his residence from the said Moballah and came over in a rented house at 241-Race Course Road, Lahore. Amjad Hussain. however, continued pestering them there as well. On 13-3-1984, when Muhammad AH com­ plainant returned home after closing his business, he was informed by his wife that Zahida had not returned home since noon-time. His son Muhammad Ilyas informed him that he had seen Amjad Hussain accused roaming about the place in a red Toyota Car. This information aroused suspicion that Amjad Hussain in collusion with his father Fazal Hussain has enticed away Mst. Zahida. The complainant Muhammad Ali and his brother Shaukat Ali tried their best to get back Zahida from the accused but failed, whereafter the present case was got registered at 2-10 p. m. on 14-3-1984. After registration of the case the police undertook investigation and raided the-house of Fazal Hussain accused. Amjad Hussain'accused was arrested on 15-3-1984, whereas Fazal Hussain and Arshad accused slipped away alongwith Mst. Zahida abductee. It appears that both Fazal Hussain and Arshad Hussain accused-respondents approached the learned Additional Sessions Judge, Lahore, who granted them interim pre-arrest bail on 15-3-1984 and adjourned the case for arguments on 22-3-1984. It may be stated here that on 14-3-1984, Mst. Zahida Parveen made an appli­ cation to the llaqa Magistrate stating therein that she had married Amjad Hussain of her own freewill and, therefore, feared danger to her life from her parents and prayed that she be sent to Darul Aman. At that time, she was accompanied by Muhammad Sarfraz, Advocate, who also made a similar request to the Court. However, the learned Magistrate proceeded to record her statement and declared her to be free agent with a direction that she can go anywhere she likes. An application for post-arrest bail on behalf of Arajad Hussain was moved which also fixed for hearing on 22-3-1984, before the same Court. 2. It appears that Mst. Zahida was produced by Ifzal Hussain, a brother of Fazal Hussain accused, before a Magistrate with the assistance of Mr. S. M. Idrees, Advocate, on 19-3-1984 for getting her statement recorded under section 164, Cr. P. C. Her statement was accordingly recorded by the Magistrate under section 164, Cr. P. C. in which she stated that she had not been abducted by anyone ; that her father wanted her to be married against her wishes to an old person; that she of her own accord came to Amjad accused and had since married him of her own freewill. It was also stated by her that her father had lodged a false report against her husband and his father, When the two bail applications came up for hearing before the learned Additional Sessions Judge, Lahore, he directed the police to get another statement of Mst. Zahida recorded under section 164, Cr. P. C. and adjourned the case on 31-3-1984 for hearing. I have gone through the police diary of this case and find that Mst. Zahida was produced before the investigating officer, Bashir Ahmad Bhatti, on 25-3-1984 at 11-30 a. m. in the District Courts, Lahore. The said officer produced her before Amanullah Khan, Magistrate, for getting her state­ ment recorded under section 164, Cr. P. C. However, the learned Magis­ trate postponed the recording of her statement under section 164, Cr. P. C. on the ground that he would like to hear arguments from both sides on the point as to whether a second statement under section 164, Cr. P. C. could be recorded or not. The matter was adjourned to 26-3-1984. On that date, the abductee was not present and her counsel Mr. S. M. Idrees, Advocate, contended that the date was fixed only for arguments and not for recording of the statement under section 164, Cr. P. C. Thereafter, it appears from the police diary that the alleged abductee or tbe parties did not appear before the Magistrate. 3. Jt appears that meanwhile Mst. Zahida filed1 W. P. No. 1250 of 1984 in the Court against the order of the learned Additional Sessions Judge dated 22-3-1984 questioning the vires of the direction that she should be re-examined under section 164, Cr. P. C. It is stated at tbe Bar that the said writ is still pending. The learned Judge before whom this writ was placed stayed the order dated 22-3-1984 by which a direction had been given she should be re-examined under section 164, Cr. P. C. After the stay of the order dated 22-3-1984, the two applications for bail came up for disposal on 31-3-1984. The learned Additional Sessions Judge allowed bail before arrest to Fazal Hussain and Arshad Hussain accused and bail after arrest to Atnjad Hussain accused. The bail was allowed to the accused respondents on the ground that only a suspicion had been alleged in the F. I. R. against the accused, that the victim appeared thrice before the Magistrate and in the High Court as well, but she did not incriminate any person for her enticement and, in fact, refuted the allegation of pro­ secution. Amjad Hussain was allowed bail in view of the statement of Zahida under section 164, Cr. P. C. on 19-3-1984 4. The present petition for cancellation of bail was admitted on 8-4-1984. Notice was ordered to be issued to respondents for 24-4-1984. On that date Mr. S. M. Idrees, Advocate, appeared on behalf of the three accused-respondents. He had no power of attorney and, as such, under­ took to produce the same in Court on the next date of hearing. He sub­ mitted that he had been engaged only on that date a d, therefore, sought adjournment. The petition for cancellation of bail, was, therefore, adjourned to 7-5-1984, with a direction that tbe accused-respondents will also appear in Court in person on that day. On that date, Mr. S. M. Idrees, learned counsel for the respondents stated that he had informed the respondents of the date of hearing in this Court. He filed power of attorney on behalf of Amjad Hussain and Arshad Hussain only. He further stated that Fazal Hussain respondent No. 2 was duly informed by him of the date of hearing. Fazal Hussain did not care to appear in Court on 7-5-1984 nor did he give power of attorney to any counsel. On 24 4-1984, Mr. S. M. Idrees had stated in Court at the Bar that he repre­ sented all the three respondents accused. I, therefore, passed an interim order that Fazal Hussain is avoiding appearance in this Court for some ulterior motive, that he was fugitive from law and, therefore, not entitled to any hearing though his case will be decided on merits. After recording this interim order, I proceeded to hear the petition on merits. 5. When I was hearing this petition on merits on 7-5-1984, I noticed that although Mst. Zahida. had been appearing before various Courts and making statement but at no occasion she appeared to be a free agent. She had been appearing all the time from the custody of the accused. In the circumstances, I directed on 7-5-1984 that Mst. Zahida be lodged in Darul Aman as it was at one time prayed by her in an application to the Ilaqa Magistrate on 14-3-1984. I directed Muhammad Sharif A.S.I, who was then investigating the case, to recover Mst. Zahida from the accused respondents and lodge her in Darul Aman on that very date without fail. I further directed that her father and mother would only be permitted to meet and talk to Mst. Zahida in Darul Aman. It was ordered that she would be produced in Court on 14-5-1984 by Muhammad Sharif A.S I. for recording of her statement. A.S.I.-Muhammad Sharif, as reported by him in his explanation dated 14-5-1984 that be contacted the accused but Mst, Zahida was not made available to him. On 12-5-1984, Mst. Zahida filed W. P. No. 2028 of 1984 challenging my order dated 7-5-1984. This peti­ tion was placed before me on that very day. I dismissed that petition in limine holding firstly that the constitutional petition had been filed to frustrate my order dated 7-5-1984, and secondly, that the same was not maintainable under any law. On that date, Mst. Zahida was not present in Court. 6. This petition for cancellation of bail was heard on merits today. The accused-respondents were not present in Court despite my clear orders dated 24-4-1984. It has been contended by the learned counsel for the petitioner that the abductee was being detained by the accused-respondents illegally ; that she was never a free agent while making statement under section 164, Cr. P. C. or while appearing before any other Court ; that the accused did not comply with the orders of the Court of the learned Additional Sessions Judge dated 22-3-1984 and the orders of this Court dated 7-5-1984 ; that the two writ petitions were filed only to frustrate the orders of Courts and to avoid the recording of statement of Mst. Zahida, and that the offence with which the accused had been charged is punishable with imprisonment for life. It was further argued that the absence of recovery of Mst. Zahida from the custody of the accused had thawarted fair and independent investigation in this case. He placed reliance upon PLJ 1984 SC 56. In reply, the learned counsel for the accused-respondents contended that Mst. Zahida, on 14-3-1984, before registration of the case, had made an application with a request that she should be lodged in Darul Am an but on that very day she was allowed by the Magistrate to proceed to a place of her own choice and she was, therefore, with the accused under orders of the Court and was a free agent. It was contended by the learned counsel that, on 19-3-1984, the alleged abductee appeared before a Magistrate alongwith her counsel. She was identified by Ifzal Hussain, a brother of Fazal Hussain, and made statement under section 164, Cr. P. C. of her own freewill. It was "next contended that after orders, on 20-3-1984, Mst. Zahida appeared before the investigating officer, Bashir Ahmad Bhatti, in a bungalow No, 65-F. C. C. Gulberg-II. Lahore. She made a statement under section 161, Cr. P. C. and owned her state­ ment under section 164, Cr. P. C. dated 19-3-1984. It was, therefore, argued that Mst. Zahida had also joined investigation and, as such, it could not be said that she was not a free agent. It was accordingly sub­ mitted that there was no ground for cancellation of the bail. 7. 1 have considered the above arguments of both the learned counsel as well as the learned counsel for the State. I find that the conduct of the accused was highly objectionable, in that, they did not allow Mst. Zahida to be examined by a Magistrate under orders of 22-3-184. It is correct that the said order was suspended in W. P. No. 1250/1984 but on 7-5-1984 1 directed her to be lodged in Darul Aman so that she could be examined by me on 14-5-1984. She was not produced before the police in compliance with my orders. Writ Petition No. 2028 of 1984 was filed obviously with the object to frustrate my order. On 24-4-1984,1 had directed the accusedrespondents to be present in Court in person but they were absent on 7-5-1984 as well as today. They hart no respect and regard for the orders of this Court, i-a/al Hussam accused though served did not care to put appearance in Court. Mst. Zahdia, for the first time, appeared in the Court of Ilaqa Magistrate on 14-3-1984. She was produced by Mr. Muhammad Sarfraz. Advocate. It is surprising that although she made a request to be lodged in Darul Aman yet the learned Magistrate in spite of the request by her learned counsel proceeded to record her statement and allowed her to go to a place of her choice. This conduct of the M igistrate was exception­ able and unwarranted. He should have directed her to be lodged in Darul Aman for a few days as requested by Mst. Zahida herself. She next appeared before another Magistrate on 19-3-1984, who recorded her state­ ment under section 164, Cr. P. C. On that date, she was accompanied by Ifzal Hussam, a brother of Fazal Hassain accused, and Mr S. M. Idrees, Advocate. Her statement under section 164, Cr. P. C. was recorded by following a procedure as if she was an accused person and making a con­ fessional statement. The procedure followed by the Magistrate was wholly unwarranted. At that time, obviously she came from the custody of the accused and after her statement she again went back in the custody of a reiat.ve of the accused. She was, therefore, not a free agent. On 22-3-19^4. the learned Additional Sessions Judge ordered that Mst. Zahida should be re-exammed under section 164, Cr. P. C. On that date, she was taken to the Court of Mr. Amanullah Khan, Duty Magistrate, for record­ ing h;r statement as per directions of the learned Additional Sessions Judge, but instead of complying with the orders of the learned Additional Sessions Judge. Mr. Amanullah Khan Magistrate decided to hear arguments on the point as to whether a second statement under section 164, Cr. P. C. could be recorded or not. This was a clear contravention of the orders of the learned Additional Sessions Judge. To ni;, it appears that was with some ulterior motive. The result was that the statement of Mst. Zahida could not be recorded. After this she appeared to have filed W. P. No. 1250 of 1984. In this the orders dated 22-3-1984 were suspended. At the time of the filing of this very writ she was admittedly in the custody and con­ trol of the accused respondents. Thereafter, I had given a direction on 7-5 1984 that she should be lodged in Darul Aman and produced in this Court on 14-5-1984 for recording of her statement. As indicated above, instead of producing Mst. Zahida before the police, a writ petition No. 2028 of 1984 was filed got filed in this Court challenging my orders dated 7-5-1984. It was tiled only to frustrate my orders dated 7-5-1984, as already has been held by me in the said petition. Today, I was shown an application dated 6 5-1984 by Mst Zahida said to have been filed before Ch. Muhammad Nawaz. Duty Magistrate, Lahore. In that application it was prayed that she had not been abducted by anyone and that she cannot be re-examined under section 164, Cr. P. C. and cannot be compell­ ed for that statement for the second time. It was. however, stated that if the Court desired, she was prepared to make a statement. The learned Magistrate on that very day ordered that application to be filed as she had been examined under sections !6i, Cr. P. C. and 164, Cr. P. C. This application and the order of the Magistrate dated 6-5-1984 was not brought to my notice earlier. It was not placed on the file of this petition for cancellation of bail on 7-5-1984 by the accused-respondents or their counsel Mr. S. M. Idress, Advocate. It appears that this application has been slipped into this file by under-hand means through the office. At the time of hearing of W. P. No, 2028/1984, Mst. Zahida was. not present in Court. From the above narration of facts, it is clear that the accused persons were trying to avoid a second statement of Mst. Zahida as a free agent. They were trying to frustrate all orders of the Courts directing her second statement. This fact strenghens my view further that Mst. Zahida was never a free agent at the time of her appearance in Courts, at the time of making her statement under section 164. Cr. P. C. and at the time of her making application on 14-3-1984 and even on 6-5-1984. It is correct that she was examined by the police on 20-3-1984 in bungalow No. 65- P. C, C. Gulberg-II, Lahore. This bungalow is not owned by the accused- The S. H. O. Bashir Ahmad Bhatti went all the v,a to that bungalow to record her statement in the presence of Arshad Hu.^ain and Fazal Hussain accused. This conduct of Bashir Ahmad Bbju- S.-l. S. H. O. was not only objectionable but highly suspicious On an .ppheation by the com­plainant and for this very reason, the investigation was withdrawn from Bashir Ahmad Bhatti and entrusted to Muhammad Sharif A. S.-I, At the time of recording of her statement under jc tiv ;(•>!, Cr. P. C. she was under the clutches of the accused person;, two ; wnom were present in the Bungalow. It would have been proper to- the uivestigating officer to ensure at the time of recording her statement by him or by any other Court that Mst. Zahida was a free agent. He took n. step; to ensure that. Thus Bashir Ahmad Bhatti S,. I. failed to perform h s duties diligently and hold honest investigation. 8. From the above circumstance;., i an; clear m my mind that although Mst. Zahida has been appearing in Courts, making statements and iling applications yet at no occasion she was a free agent. It was, tthere fore, necessary to hold proper investigation aad lodge her in Darul Aman So that the influence of the accused could be removed and thereafter her B statement could be recorded as a free agent. The conduct of the accused was not only illegal but also in clear violation of the direction of this Court. They appear to be influential people and have >o far succeeded to withhold material evidence in the form of independent .statement of Mst. Zahida. Unless it could be held that Mst. Zahida was a free agant, her statement cannot be recorded The earlier statements recorded by Courts or her earlier applications are of no avail to the accused who are ontinuing to tamper with the material evidence in this case The accused have been charged with an offenci untie; section i! of she Offence of Zina (Hudood Ordinance No. V!l; >t l ( )79, whiJi is punishable with imprison­ ment for life, in view o! these circumstances. 1 am of the opinion that the accused-respondents were not rightly allowed bail before arrest or bail after arrest by the learned Additional Sos-unis Judge, Lahore . Their conduct ,j o es not allow them the concession < ;' hail. In view of the above discussio n this petition i^ accepted and the bail before arrest allowed to Fazal Hu s sain and Arshad Ilussam accused and bail after arrest allowed to Amjad H us sain accused is cancelled. (Aq. By.) Bail cancelled.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 369 Present : GUL ZARIN KIANI, J HALIM SARWAR—Petitioner versus S.H.O., POLICE STATION HEADMARALA and 2 Others— Respondents Writ Petition No. 2177 of 1984, decided on 11-6-1984. (i) Criminal Procedure Code (V of 1898)—

S. 154 read with Provisional Constitution Order (C.M.L.A's 1 of 1981)—Art. 9—First Information Report—Formal registration of— Substance of information disclosing commission of cognizable offence —Matter also reported to police first in time—Held : It being duty of S.H.O. to record information and to proceed to investigate matter, registration of formal F.I.R. not to be refused—One F.I.R. already registered on basis of one sided version—Held : Registration of second F.I.R. showing different grievance not to refused by Police Officer in proper performance of his legal duty under S. 154 Cr. P.C. [P. ?73].-f PLJ 1979 Cr. C. (Lah.) 53 ; 1982 P. Cr. L. J. 171 ; NLR 1982 Cr. 296 & PLJ 1981 Cr. C. (Lah.) 223 ref. 1975 SCMR 149 distinguished. (ii) Provisional Constitution Order (C.M.L.A's 1 of 1981)—

Art. 9—See : Criminal Procedure Code (V of 1898)—S. 154. Ch. Kban Muhammad Bajwa, Advocate for Petitioner. Mr. Farooq Bedar, A. A. G. for Respondents. t Date of hearing : 11-6.1984. JUDGMENT Petitioner through this constitutional petition prays for issuance of an appropiate writ directing respondents to register a criminal case under Section 154 of the Criminal Procedure Code against Muhammad Hussain and others. 2. Briefly stated the facts are that one Ejaz and Maqbool Ahmad of Sialkot on 1-5-1984 went to make some purchases in connection with the marriage of the son of Ghulam Rasool which was to take place on 9-5-1984. At a distance of 1-t- miles from the village, Muhammad Hussain, Bashir, Atta Ullah and Saif Ali were laying shingles on the road who threw a basket of shingles on Ejaz and Maqbool while they were riding on a motor cycle. This incident gave rise to exchange of hot words and blows between the parties. It is stated that since Ejaz and Maqbool were only two in number while Atta Ullah and others were 12/13 in number, therefore, Ejaz and Maqbool {bought it better to leave the place in the interests of their own safety. Ejaz is stated to have run away to­ wards city on motor-cycle while Maqbool Ahmad, his companion, ran towards the village. The other party succeeded in catching the two and gave them severe beating. During this scuffle ten persons were injured on the side of the petitioner sustaining 43 injuries in all including six frac­tures while 12 injuries all simple in nature, were sustained by the other party viz, Atta Ullah eic. excepting one stab wound to one Rebmat which has been attributed to Zahid son of Abdullah. Injured persons on the petitioner's side immediately approached Allama Iqbal Hospital and got themselves medically examined at about 11-50 hours. Copies of medicolegal reports have been attached with the writ petition. After having got themselves medically examined, these injured persons excepting three persons who were admitted in Hosoital, approached Police for registration of a case at about 2 p.m. on 1-5-1984. It is stated that on hearing the version of the injured and seeing the medico-legal report, police refused to register the case under the influence of one Nazir. The other party who got themselves medically examined much later succeeded in getting a case registered against the party of Ejaz and Maqbool Ahmad whose injuries were larger in number and more serious in nature. The Police, however, refused to register a case at the instance of the petitioner. 3. Dissatisfied with the attitude of Police, Superintendent of Police was approached, for redress of the above grievance but to no avail. There­ after, constitutional jurisdiction of this court has been invoked for the necessary relief directing the concerned police officials to register a case under Section 154 Cr. P. C. in proper performance of legal duty enjoined upon it. 4. I have heard learned counsel for the petit oner and Mr. Farooq Bedar, learned Assistant Advocate General who represented the .respon­ dents. Learned counsel for the petitioner has contended that the Police is bound to register a case under Section 154 Cr. P. C., if the facts reported to it disclose commission of cognizable offence. This duty of registering a criminal case cannot be shirked by the Police on the basis that a case had already been registered in respect of the same occurrence at the instance of the other party. The petitioner's counsel contended that the petitioner and others had been seriously injured by Atta Ullah and others who were clearly aggressors. It was also stated that the petitioner approached the Police prior in point of time and reported the true version of the occur­ rence. The Police instead of registering a case as reported to then waited for the other party to reach and thereafter registered a case at their instance and thus frustrated the legal right of the petitioner to have his case registered first and investigated as required by law. Learned counsel has placed reliance upon the cases of Akrara AH Shah v. S. H.O Police Station Kotwali Kasur and two others (PLJ 1979 Cr C. (Lahore) 53] Mirza v. The (1982 P. Cr. L. J. 171 and Abdul Ghani v Station House) Officer P. S. S H.O. (1982 P. Cr. L J. 171 and Abdul Ghani v. Station House Officer P.S. Saddar Sheikhupora etc. (NLR 1982 Cr. 296). It has been observed in the case of Akram Ali Shah that "it cannot be laid down as a proposition of law that if one F.I R, pertaining to a criminal occurrence has been registered then an other F.l.R. containing the counter version of the same occurrence cannot or ought not be registered. If the accused of a particular case having a counter version for purposes of defence only then it is obvious fbat they are not handicapcd in any manner whatsoever even if a formal FIR containing that version is not existence. On the other hand, how­ ever, if the accused of a particular case have a counter version by way of a grievance then unless a formal FIR containing that grievance exists, the accused of the counter case could get away without any punishment There­ fore, in a situation of the later type, the existence of a counter FIR would appear to be equitable as a private complaint is erroneously not given the due importance. This view is consistent with the practice established over centuries of submitting challan of cross cases in a court of law". Learned Single Judge of this Court in care of Mirza v. S. H.O. referred to above, relying on the case of Akram Ali Shah v S.H.O. [PLJ 1979 Cr. C. ( Lahore ) 53] and a Division Bench Judgment of this court in Abdul Ghani v. S. H. O. ( I. C. A. 64 of 1981) in somewhat similar circumstances directed the police to receive a written complaint from the petitioner and then act in accordance with section 154 Cr. P. C. In case of Abdul Ghani v. S.HO. P.S. Saddar (NLR 19&2 Cr. 296), learned Single Judge of this Court after referring to a mass of case law observed that having given con­ sideration to the controversy involved, I am of the view "that in the atten­dant circumstances of the case in hand, the respondent S.H.O. is under a statutory duty reduce into writing the information given to him by the petitioner of the commission of a cognizable offence as provided by Sec­ tion 154 Cr. P. C. If in the course of investigation he comes to the con­clusion that the information given by the petitioner is false, he can haye recourse to the cancellation of the said FIR in accordance with law but it cannot be said that his refusal to record the cross version and to register the case is in accordance with law. It may be that the occurrence reported about is the same but then there are two cross versions of the occur­ rence, and not two different versions of the same occurrence. The version on th: basis of which the FIR has already been registered is distinct i.e. the alleged trespass of the deceased into the house of the complainant and the resultant death of the deceased which' according to that version occurred on account of said defence and in contravention of protection of property whereas the version given by the petitioner is totally on a different premises that his son the deceased was caught hold of, taken to the Haveli and murdered by four persons named in the petition". In the instant case, it is not the cross version of the same incident but there are two absolutely different versions. The version being given by the petitioner was that the -. other party had without any justification inflicted serious injuries on the persons of their party. This was not being taken as defence to the version put forward by the other party but the version is by way of grievance against the other party and unless a formal FIR was registered as noticed out in Akram Ali Shah's case, the accused may get away without any punishment. 5. Learned Assistant Advocate General, however, relied on the case of Malik Muhammad Aslam v. Station House Officer PS Saddar Sargodha a ad two others [PLJ 1 981 Cr. C. (Lahore) 223] and the case of Jamshtd Admad v. Muhammad Akram Khan and another (1975 SCMR 149) to contend that in such circumstances there was no need to register a separate formal FIR. Learned Assistant Advocate General contended that once a case has been registered, both the parties will produce their evidence before the Police in support of their respective versions who after due investigation will challan the persons found guilty for the offences committed by them even in the absence of a formal FIR against them. In view of the above, learned counsel contended that the petitioner's apprehensions are ill-founded. In any view of the matter, it was contended that the petitioner could approach the court through a private complaint to vindicate his grievance if the police did not register a case. The case of Jamshed Ahmad referred to above proceeds on distinguishable facts. There the High Court had refused relief under constitutional jurisdiction and the Supreme Court of Pakistan did not interfere with the order passed by the High Court and petition for leave to appeal was dismissed in the peculiar circumstances of the said case. In the case of Malik Muhammad Aslam which was decided on 7-12-1980, relief in constitutional jurisdiction was refused with the observation that "in such a situation better and more efficacious alter­ native available to the petitioner would be the institution of a complaint before a Magistrate". 7. On a review of the case law reproduced above, and the facts of the case as emerged from the record, the petitioner has a clear grievance against he police. If as alleged, the matter was reported to the police first in joint of time and the substance of information disclosed commission of a cognizable offence, then the S.H.O. could not refuse to register a formal FIR for it was his duty to record the information and proceed to investigate the matter as provided in section 154 Cr. P. C. Even if an FIR has been registered on the basis of one sided version, regisiration of a second FIR showing a different grievance could not be refused by the Police Officer in proper performance of his legal duty under Section 154 Cr. P. C. 8, In view of the discussion, writ petition is accepted and it is directed that the respondent-S H O. shall register a case in accordance with section 154 Cr. P. C. on the information given to him by the petitioner of a cognizable offence and investigate that version. It is needless to mention that if on an investigation, the respondent S.H.O. arrives at the conclusion that the information given by the petitioner is false or incorrect he can proceed in accordance with law for the cancellation of the case. (TQM) Petition accepted.

PLJ 1984 Cr PLJ 1984 Cr. C, (Lahore) 372 Present : RIAZ AHMAD, .1 ARIF MATIN BHUTTA- Petitioner V<-C5i« THE STATE—Respondent Criminal Misc. No. 1142-B/1984. decided on 21-5-1984. (i) Criminal Procedure Code (V of 1898) —

S. 498—Bail before arrest—Grant of—Held : Person applying t'ot bail before arrest to establish case having been registered with ulterior motive with object of disgracing accused involved therein. fP. 374 ID PLJ 1984 5>C 56 ; 1983 SCMR 645 : PLD 1949 Lah. 21 & PLD 1963 Lull. 279 rel. (ii) Criminal Procedure Code (V of 1898)—

S. 498 read with Pakistan Penal Code (XLV of I860)—Ss. 354 & 506—Bail before arrest—Refusal of-Petitioner and co-accused out­raging modesty of married woman in their neighbourhood in brutal manner —No ulterior motive on part of complainant disclosed to involve petitioner and others falsely with view to disgrace them— Held : Trend of teasing, humiliating and even outraging modesty of women folk being on increase, case certainly not to be fit for grant of pre-arrest bail. [Pp. 374 & 375]/4 & F (iii) Bail

Grant or refusal of—Court—Consideration before—Held : In deciding question of grant or refusal of bail, balance to be struck amongst three requirements, i.e. (/) Person not found guilty to be presumed to be innocent, (//) process not to be allowed to be defeated in case of guilt being established and (in) desperate persons not to be let loose in society—Criminal Procedure Code (V of 1898)-Ss. 496, 498 & 498. [P. 374JC (iv) Court

Trends and circumstances in society—Effect of—Held : Court act­ ing not in vacuum, prevailing trends and circumstances in society not to be overlooked. [P. 374J.B (v) Court

Duty of—Held : Highhandedness to be required to be curbed sternly b> courts to save society from chaos. [P. 375]E (vi) Criminal Procedure Code (V of 1898)—

Ss. 496, 497 & 498—See : Bail. Sb. Khurshid Ahmad, Advocate for Petitioner. Date of hearing : 21-5-1984. ORDER The petitioner alongwith two others are accused of committing an offence under Section 354 P. P. C. for outraging the modesty of one Mst, Nargis wife of Zahid resident of Alama Iqbal Town , Lahore . In addi­tion thereto, the petitioner and his co-accused were also accused for having committed an offence under Section 5u6 P. P. C. 2. Precisely, the allegation against the petitioner and his co-accused, Tajammal and Shamas, are that they had been teasing the complainant Mst. Nargis by making obscene remarks. The complainant had com­ plained with regard to the conduct of the petitioner and the co-accused to their parents but allegedly the parents did not take any action, and thus the petitioner, and the co-accused were further encourged to indulge into their nefarious activities. It was alleged by the complainant that on 1st of May, 1984, at about 11 a.m. when her husband had, gone to his shop, and while she was standing in the door of her house, for the purchase of vegetable from a vendor, the petitioner and the co-accused surrounded her. The petitioner remarked as to why the complainant was not giving litt to him. The complainant reprimanded them, whereupon the petitioner and the 'co-accused boiled with rage, and caught hold of the complainant from her neck and torn her shirt. Shamas and Tajammal, co-accused of the petitioner, caught hold of the complainant from arms and dragged her on the road. According to the complainant, they had remarked that the complainant considered herself to be a beauty but -the same will be spoiled. With utmost difficulty, the complainant rescued herself and hit the petitioner with a stone and, thereafter, the petitioner and Tajammal co-accused left, and remarked that if she does not give lift to them, she will be killed. The neighbourers, Saadat Hussain and one Karam residents of 127, Ravi Block; were also attracted to the place of occurrence, and they reprimanded the petitioner and Tajammal co-accused, and rescued the complainant. 3. The co-accused, Tajammal and Shamas, invoked the jurisdiction of the learned Additional Sessions Judge, Lahore, for the grant of prearrest, bail, and the interm bail was allowed to them, and the confirmation thereof is pending adjudication today before the said Court. 4. This Court was placed to admit the petitioner to interim bail, on the ground that the co-accused have been admitted to bail. In fact, they had been admitted to interim bail only, and, as narrated above, the confirmation of their bail is to be decided today by the learned Additional Sessions Judge, Lahore . 5. This is certainly not a fit case for the grant of pre-arrest bail. Unfortunately, the trend of not only teasing to the women folk, but to humiliate them and to outrage their modesty, is on increase in our society. I think that the attitude of the parents also is a contributory factor to­ wards this growing tendency which has to be noted with concern. Apart from the attitude of the parents, I am of the firm view, that the leniency on the part of the Courts to indiscriminate grant of bails is also a factor for such unhealthy trend. Wnile making these observations, I should not be understood as a moralist because as a Judge of this Court, II have to do justice between man and man, in accordance with law, but Mat the same time, a Court do not act in vacuum, and cannot afford to be {oblivious of the prevailing trends and circumstances in the society. 6. In deciding the question of the grant or refusal of bail, balance has to be struck amongst three requirements, firstly, a person not found guilty is presumed to be innocent ; sec -ndly, the process to ascertain the guilt, and in case, the guilt is established, he has to brought to book and must not be allowed to defeat such process, and thirdly, the desperate persons would not be let loose on the society so that they think that they might just as well hang for a sheep as for a lamb. 7. In addition thereto, as far as the pre-arrest bail is concerned, be­ sides to strike a balance amongst the three requirements quoted above, it is essential to establish, that not only the case has been registered, with anl ulterior motive but is designed to tiisgrace the accused involved therein.!/) Unless in a pre-arrest bail these conditions are established, a Court can/ not admit an accused to pre-arrest bail. 8. In support of my view, I respectfully place retliance upon Hidayat Ullah Khan v The Crown (P.L.D. 1949 Lahore ) Muhammad Safdir and others v. The State (1983 S.C.M.R. 645), Zia-ul-Hassan v. The State (P.L J. i984 SC 56) and Muhammad Iqbal v. The State (P.L.D. 1963 Lahore 279). 9. Applying the criteria referred to above, J am of the view that high handedness is required to be curbed by the Courts sternly to save the society from chaos. In the present case, the petitioner and the coaccused who are also residents of the same locality, in a brutal manner had utraged the modesty of a woman, one of their neighbourer , The circum­ stances do not disclose ulterior motive on the part of the complainant, to involve the pstitioner, and the co-accused falsely in this case with a view to disgrace them and, therefore, it is not a fit case for the grant of pre-arrest bail or the confirmation of the interim bail already allowed to the peti­ ioner. Accordingly, I would recall the order dated 7-5-1984 and dismiss the present petition. (TQM) Petition dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. (AJK Shariat Court) 375 Present : SARDAR MUHAMMAD ASHRAF KHAN. J FAZAL DAD and Another-Petitioners versus THE STATE—Respondent Criminal Misc. No. 221 of 1982, decided on 18-10-1982. (i) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498—Bail—Grant of in Murder case— Japha— Allegation of—Petitioner taking no part in commission of offence nor rendering any help or facility to other accused in causing death of deceased— Petitioner catching hold of deceased when other accused all of sudden reaching spot and causing fatal injury—Held : Petitioner having in no way helped or encouraged other accused in commission of offence, concession of bail to be allowed to him. [P. 377J/4 (ii) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498—Bail—Refusal of—Petitioner causing death of de­ ceased by inflicting blow on vital part of body without any sort of provocation on behalf of deceased —Held : Prima facie there existing grounds for believing that petitioner committed offence punishable with death, petitioner not to be entitled to freedom on bail. [P. 377j# Mr. Mumta/ Hussain Rathorc, Advocate for Petitioners. Mr. Muhammad Akram, Advocate General for State. Date of Institution : 7-8-1982. ORDER Fazal Dad and Fazal Karim who are father and son respectively, are facing trial under Section 5, Islamic Penal Laws Act, in the District Criminal Court, Kotli. They were refused bail by the said Court vide its order dated 4-7-1982 and feeling aggrieved of the same they have now approached this Court for their release on bail, pending decision of the case. Briefly stated the Prosecution story is that Fazal Dad, petitioner had become inimical towards Mst. Afsar Jan, P. W. on account of some dis­ pute over the claim of land which she had inherited from the estate of her maternal grand-father. The',said petitioner also harboured grudge against Jehandad deceased as he though him to be supporter of Mst. Afsar Jan. On 13-8-1981, at about lb-00 a.m. Fazal Dad petitioner started cutting grass from the field owned by the aforesaid woman and when he was asked to desist from doing so by her, he started beating her. On her raising hue and cry, his son, Binyamin, the complainant, who was some­ where near the place, came on the spot to rescue his mother from the cluches of the petitioner. The petitioner also started beating him whose cries for help attracted his brother-in-law, Jehandad deceased to the scene of occurrence. The complainant, somehow, managed to secure his release from the petitioner and came to Jehandad but the petitioner followed him there and caught hold of Jehandad deceased. Meanwhile, Fazal Karim, petitioner came there from his house, armed with a 'Seroo' of the cot with which he inflicted a blow on the head of Jehandad deceased who, after sometime on the same day, succumbed to the injury so caused, in the Mirpur hospital. I have heard the learned Counsel for the parties and also perused the record of the case. The learned Counsel for the petitioners has argued that in the facts and circumstances of the case, it cannot be said at this stage that Fazal Karim, petitioner had the intention to cause the death of Jehandad by inflicting a blow with a piece ot wood on his head and, as such, there are no reasonable grounds for believing that he has committed an offence punishable with death or life imprisonment thereby bringing his case within the prohibitive clause of Section 497, Cr. P. C. On behalf of Fazal Dad, petitioner, it is contended that there was no ground, whatso­ ever, available to the trial Court to refuse bail to him because he is not responsible for causing any injury to the deceased nor any overt act is attributed to him, during the course of occurrence. The learned Counsel for the State has opposed this application on the ground that the petitioners' right to concession of bail is debarred under the law as one of them is accused of causing death of a person while the other is responsible for pro­ viding help to him in the achievement of his object by catching hold of the deceased. ; After giving my anxious consideration to the arguments addressed at (he bar by the learned Counsel for the parties and taking into consideration the facts and circumstances of the case, I am of the opinion that in the matter of bail the petitioners do not deserve equal treatment as their cases stand on different footing from each other. So far as Fazal Dad petitioner is concerned, on the record there exists no reasonable ground to believe that he is guilty of an offence for which grant of bail is prohibited under the law. From the contents of the F. I. R. and the statements of the eye-witnesses recorded by the trial Court, it does not appear that he took any part in the commission of an offence which is the subject of trial' or rendered any help or facility to the other petitioner in causing death of Jehandad. The only allegation against him is that while he was catching hold of Jehandad deceased, Fazal Karim, petitioner came on the spot from his house and inflicted a blow with the 'Seroo' of the cot which he was carrying with him, on the head of the deceased which resulted in his death. It is on the record that when he caught hold of the deceased, the other petitioner was not at all present there who all of sudden reached the spot from his house and caused a fatal injury to Jehandad deceased. There is no allegation against Fazal Dad, petitioner that he had called his son on the spot nor any act is ascribed to him which may suggest that he, in any way, helped or encouraged the other petitioner in the commission of offence. For the reasons stated above, Fazal Dad, petitioner is entitled to the con­ cession of bail during the pendency of the case and thus, the trial Court has not exercised its discretion judiciously and in accordance with the settled principles of law enunciated by the superior Court of Pakistan and Azad Kashmir, in the matter of bail, to the accused person by refusing bail to him. As regards the case of Fazal Karim, petitioner, there appears no good ground for interference in the discretion exercised by the trial Court in refusing bail to him. From the record, prima facie, it appears that he, without any sort of provocation on behalf of the deceased, has caused his| death by inflicting a blow on such a vital part of his body as head with such a weapon of offence that a man of ordinary prudence had the reasons to believe that his such act was likely to result in the death of the victim. In this view of the matter, prima facie, there exist grounds to believe that Fazal Karim, petitioner has committed an offence which is punishable with death thereby disentitling him to freedom on bail in view of the provisions of Section 497 (1), Cr. P. C. For the foregoing reasons, Fazal Dad, petitioner is released on bail subject to his furnishing. bail bond in the sum of Rs. 50,000 with one surety in the like amount, to the satisfaction of A. D. M. Kotli. The application of Fazal Karim, petitioner stands rejected. (MIQ) Order accordingly

PLJ 1984 Cr PLJ 1984 Cr. C. (AJK Shariat Court) 377 Present : SARDAR MUHAMMAD ASHRAF KHAN, J ZAFAR IQBAL and Another—Petitioners versus THE STATE—Respondent Cr. Misc. Nos. 100 & 101 of 1983, decided on 15-5-1983, <i) t riintwai Procedure Code (V of 1898)—

S. 497 (1) Proviso—Bail—Grant of — Minority—Ground of— Petitioner, admittedly minor of age of about 14 years on relevant date, not attributed any fatal blow—Common intention shared by petitioner with other accused in causing injuries with hatchet to deceased also matter to be, ascertained on basis of evidence to be recorded by trial Court—Held : Petitioner to deserve to be freed on bail pending decision of case. [P.319]A & B (ii) Criminal Procedure Code (V of 1898)—

Ss. 497 & 498—Bail- Refusal of— Petitioner prima facie directly responsible for death of deceased in inflicting injuries on person of deceased with pointed weapon—Other petitioner also prima facie appearing to have facilitated commission of offence of murder in catching hold of deceased by waist at time when other accused caused injuries-Held : Bail application of both petitioners to be rejected. [P.380]C & E (iii) Criminal Procedure Code (V of 1898)—

S. 497 (5)—Bail—Cancellation of—No actual part in commission of offence attributed to respondent except his having held pistol snatched from deceased in hand and having commanded eye-witness not to come to rescue of deceased—Held : Respondent not to be held responsible of having common intention with other accused to put deceased to death. [P 380J0 Mr. M. Y. Surakhvi, Advocate for Petitioners. Mr. M. S. Tariq, Advocate for Complainant. Mr. Rafique M ah mood Khan, Addl. A. G. for State. Dates of Institution : 6 & 10-21983. ORDER This order will cover both the above petitions as they arise out of the same order of the District Criminal Court, Mirpur, dated 22-1-1983, made by it in the bail applications. The above bail application has been moved on behalf of Zafar Iqbal, Mazhar Hussain and Muhammad Hussain, petitioners who are facing trial ia the District Criminal Court, Mirpur alongwith Muhammad Ramzan, respondent in the above revision petition, under Sections 302/34, 341, A. P. C, read with Section 5, Islamic Penal Laws Act and Section 17 fj) E. H. O. The brief facts forming background to the filing of the above petitions are that Ghulam Rasool deceased who was employed as a Driver in the United Bank Limited, Mirpur, was returning from his home situate in village Gurah Kheran in Baring, Tehsil Bhimber, after spending Bid holidays, to join his duty at Mirpur on 2-10-1982 at about 5-30 a. m. and he had hardly covered 3-4 furlongs when the petitioners and respondent, Muhammad Ramzan who were armed with hatchets, 'lathis' and 'Gainti', »)! of a sifdden obstructed his way and mounted assault on him- Muhammad Hussain, petitioner caught hold of the deceased by waist while Mazhar Hussain and Zafar Iqbal, petitioners inflicted injuries on his person with 'Gainti' and 'lathi' respectively whereas Muhammad Rarnzan. respondent in the above revision petition, brandishing the revolver in his hand, threa­ tened one of the eye-witnesses of the occurrence of dire consequences in case he attempted to rescue the deceased and also gave him 'lathi' blows while he had fallen on the ground on receipt of injuries at the hands of the other accused-petitioners. All the accused made good their escape from the scene of occurrence on the arrival of the witnesses. The injured person was removed to Bhimber hospital where his statement regarding the. incident was recorded by the Sub-Inspector, Police Station Rhirnher and a case under sections 307, A. P. C. and 1515. Islamsc Penal Law$ Act, was registered. The injured person while being shifted to hospital at Mirpur succumbed to his injuries in the way. The Police after investigating the case, put up the challan against the petitioners and Muhammad Ramzan, respondent for the aforesaid offences in the District Criminal Court. Mirpur where bail application on behalf of ail the accused in the case was moved which was only accepted to the extent of Nfuhammad Ramzan, respondent while bail was refused to others. Hence the present bail application and the revision petition for cancellation of bail granted to the respondent therein. After giving my due consideration to the arguments addressed at the bar by the learned Counsel for the parties and taking into consideration the facts and circumstances of the case, I am of the opinion that out of the petitioners, only Zafar Iqbal, petitioner is entitled to be released on bail pending the decision of the case At the time of commission of the offence, he was admittedly a minor of the age of !4 years and 10 days and, as such, his case falls within the ambit of first proviso to sub-section (1) of Section 497. Cr P. C. which fact removes the embargo placed on the grant of bail to him by reasons of his having been accused of an offence punishable with death or transportation for life and entitlies him to be freed on bail if the other merits of the case so require. Now, coming to the merits of the case, it may be stated that he is alleged to be armed with a hatchet at the time of commission of offence with which he struck blows to the deceased but, according to the post­ mortem report, none of the injuries found on the person of the deceased has been caused with sharp-edged weapon which means that at least he had not used the sharp-edged side of the heatchet in causing the injuries to the deceased. The death of the deceased has resulted due to haemorrhage caused by injury No. 13 inflicted by a pointed weapon which, in this case, can possibly be a "Gainti\ being carried by Mazhar Hussain. petitioner. Thus, the fatal blow is attributed to have been caused by Mazhar Hussain, petitioner. The common intention wh ch Zafar Iqbal. petitioner shared with the other accused in causing the injuries with hatchet to the deceased is a matter which is still to be ascertained by the trial Court on the basis of evidence to be recorded by it in the case. In view of the above mentioned circumstances and the petitioner under consideration being minor at the] time of commission of offence, he deserves to be freed on bail pending the decision of the case. As regard Mazhar Hussam and Muhammad Hussain. petitioners in bail application, J am of the firm view that in the circutnitaaces of the case, they should not be allowed the concession of bail at this stage. The injury No. 13 mentioned in the post-mortem report which bacame the cause of the death of the deceased, is alleged to have been caused by Mazhar Hussain, petitioner inasmuch as he was the only person who is alleged to lave inflicted injuries on the person of the deceased with a pointed weapon [ike 'Gainii', So, he is, prima facie, directly responsible for the death of the deceased. The other petitioner, Muhammad Hussain is alleged to have caught hold of the deceased by waist when the other accused in the case were causing injuries to him. Not only that, it is also the allegation against him that he beat the deceased with 'lathi' when he had fallen on the ground on receiving injuries at the hands of the other accused. There­fore, prima facie, he appears to have facilitated the commission of offence of murder. So far as respondent, Muhammad Ramzan, in revision petition is concerned, I think he has rightly been let out on bail by the trial Court because no actual part in the commission of offence is attributed to him except that he had held the pistol snatched from the deceased, in his hand and threatened one of the eye witnesses commanded him not to come to the rescue of the deceased. Thus at this stage, he cannot be held responsible of having the common intention with the other co-accused to put the deceased to death. The net result of the above discussion is that the bail application of ElZafar Iqbal, petitioner is accepted while the same is refused to the other petitioners and the revision petition against Muhammad Ramzan, respon­ dent stands rejected. Therefore, Zafar Iqbal petitioner shall be released forthwith from the custody provided he furnishes bail bond in the sum of Rs. 50.000/- with one surety in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur. (MIQ) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. (Karachi) 380 1 Sukkur Bench] Present : MUNAWAR AL1 KHAN, J DINAL and 7 Others—Applicants versus Mian NAJUMUDDIN and Another—Respondents Cr. Misc. No. 381 of 1982, decided on 1-6-1983. (i) Criminal Procedure Code (V of 1898) -

S. 561-A—High Court—Inherent powers of—Exercise of—Flagrant injustice committed at level of inferior court brought to notice of High Court—Held : High Court not to refuse to exercise its extraor­ dinary jurisdiction merely because of aggrieved party having already exhausted alternate remedy by filing revision petition before Sessions Judge under S. 439-A, Cr. P. C.[P.382]/4 PLJ 1979 Cr. C. (Lah.) 255 & PLD 1983 Pesh, 76 ref. (ii) Criminal Procedure Code (V of 1898)—

Ss. 561-A & 145—Proceedings—Quashment of—Civil suit—Pen­ dency of—Effect of—Civil suit filed by respondent against petitioner in respect of disputed land (already) pending in court of Senior Civil Judge—Held ; Proceedings under S. 145 Cr. P. C. to yield to civil litigation and (as such) not to be continued any longer [Pp. 382 385J5 PLJ 1974 Cr. C. (Lah.) 53 & 1983 P. Cr. L. J. 129 ref. Mr. Muhammad Siddiq Kharl, Advocate for Applicant. Mr. AH Aslam, Advocate for State. Mr. Amanuilah Qureshi, Advocate for Respondent No. 1. Date of hearing : 23-5-1983. JUDGMENT By this application the applicants Dinal and seven others have sought quashraent of proceedings instituted against them under S. 145 Cr. P. C. in the Court of Mukhtiarkar & F.C.M. Gambat. 2. The factual background of the case under consideration is narrated as follows. On 25th January, 1982 Mian Najamuddin, respondent No. 1 lodged complaint under Section 145 Cr. P. C. before the Mukhtiarkar F.C.M. alleging therein that the applicants had tress-passed into and occupied the land belonging to bis father Mian Raza Muhammad on 18-12-1981 when he had been away on account of Ghelum ceremony. On receipt of the complaint the Mukhtiarkar issued notices to the applicants. Although applicants Dinal, Saeed Khan, Bagh Alt and Sahib were served with the notices the remaining applicants were not served. The applicant Mohabat was reported to be in the Central Jail Khairpur. The applicants who were served with the notices filed their written statements and there after the Mukhtiarkar passed an order for attachment of the land in dis­ pute and appointed local tapedar as receiver. Aggrieved by this order the applicants filed revision petition before the District Judge Khairpur who dismissed the same. It is in these circumstances that the applicants have moved this court for quashment of the proceedings referred to above. A preliminary objection was raised on behalf of the respondent No. 1 that the petition is not maintainable. The learned counsel representing the said respondent pointed out that since the petitioners have already availed the alternate remedy the filing revision petition which was dismissed by the Additional Sessions Judge, they could not once again agitate the same matter by invoking extraordinary jurisdiction of this Court under Sec­ tion 561-A Cr. P. C. In the connection reliance was placed on Proof. A. Hameed Kausar v. The State [PLJ 1979 Cr. C. ( Lahore ) 255]. In this case revision application was decided by the Additional Sessions Judge. Not satisfied with the decision of the said Judge, the aggrieved party approached High Court under Section 561 Cr. P. C. It was held that the jurisdiction under Section 561-A Cr. P. C. is not to be used as an additional or alter­nate jurisdiction but the inherent jurisdiction under the said section is preserved in the interest of justice to redress the grievance if no other remedy is available. In the above reported case reference was also made to Gbqlara Mohammad v. Muzaminx! Khan and others (PLD 1967 S. C. 317). 3. On the other hand the learned counsel for the petitioner has drawn my attention to the case reported as Muhammad Bakhsh v. Iqbal alias Ahmed and another [PLJ 19eO Cr. C. ( Lahore ) 157) wherein the operative part of the judgment is couched in the following words : "In view of the above, exercising my powers under section 561-A of the Criminal Procedure Code, I hereby set aside the order of the learned Additional Sessions Judge dated 7th June, 1979 passed in Criminal Revision No. 68 of 1979 and remand the case back to the learned Additional Sessions Judge with the direction that he should hear and finally decide the said revision petition on merits, after notice to the parties. This petitions accordingly accepted." 4. Reference may also be made to Peshawar case of Musa Khan v. The State (PLD 1983 Peshawar 76) wherein it was held : "There is no denying the fact that after addition of section 439-A and clause (b) of subsection (4) of section 439 to the Code of Criminal Procedure, no remedy is left to an accused whose appeal is rejected by the Sessions Court and the sentence awarded to him by the lower Court enhanced in exercise of revisional jurisdiction under section 43^-A. The question arises whether in such circum­ stances would the High Court sit as an idle spectator even in­ crease in which patent injustice may have been done by the in­ferior courts. In nay humble view, in such cases High Court has the power to intervene under its inherent jurisdiction to correct the patent injustice done by the inferior courts". I am in respectful agreement with the view taken in the latter two autho­ rities. If a case of flagrant injustice which has been committed at the level of inferior court is brought to the notice of this court it cannot refuse to exercise its extraordinary jurisdiction conferred by section 561-A A Cr. P C. merely because the aggrieved party has already exhausted the alternate remedy by filing revision petition before the Sessions Judge under section 439-A Cr. P. C- and the same has failed. Under the new arrange­ment following the introduction of iaw reforms, no doubt Sessions Court and High Court enjoy concurrent jurisdiction of revision but once the Sessions Court has exercised its revisional jurisdiction the same matter cannot be agitated in the second revision apolication before the High Court. Although the power of High Court entertaining second revision application after first revision application has been heard and decided by the Sessions Court has been expressively barred, the extra-ordinary power vested in the High Court under section 561-A Cr. P. C. has been left in tact and can therefore be invoked in appropriate case notwithstanding the exercise of revisional power by the Sessions Court. Accordingly the objec­ tion with regard to competence of this applications is without any force. 5. On mcrtis of the case the learned counsel for the petitioners first contended that proceedings under Section 145 Cr. P. C. are of emergent nature and are invariably taken out to meet a grave emergency. He argued that the way in which the present case has been handled does not disclose the existence of any such emergency justifying the action under Section 145 Cr. P. C. The learned counsel while illustrating his view point, pointed out that the petitioners are alleged to have taken over possession of the disputed land forcibly on 18-12-198« where as the respondent Mian Najamuddin filed application under Section 145 Cr. P. C. a week later i.e. on 25-12-1981. Even the learned Mukhtiarkar and F C.M. waited for nearly two months before calling upon the parties to file their written statements, as he passed such order on 23-2-1982. In support of his contention he has referred to the case reported as Mrs- Sahira Almas and another v. Golbaz Khan and 4 others [PLJ 1974 Cr C. (Lahore) 53]. In this case Magistrate concerned abtained rather avoided to initiate the proceedings for full one week after submission of the police report inspite of persistent request of the counsel of the petitioners who had on each date pressed him for passing the initial order under Sec­ tion 145 Cr. P. C. It was held : "To my mind his hesitation was certainly a negation of his satisfaction about the existence of any apprehension of breach of peace which is one of the three essential pre-requisites forming the foundation of the jurisdiction or a Magistrate to proceed under Section 145, Cr. P. C. laid down by their lordships of the 'Supreme Court in Muhammad Isha^ue's case (PLD 1961 SC 426) and followed by Dorab Patel, J. in Mir Jaffar Khan Jamali's case (PLD 1971 Quetta 84). A similar view had been taken earlier in Khanger V. Jhanman (MR 1950 All 714) and The State !-. Abdus Sattar (PLD 1965 Kar. 305)." 6. If the case is examined in the light of above authorities it would be noticed that no urgency has been displayed even in the instant case. Both the respondent on whose application the impugned proceedings were initiated and the court before whom the said proceedings are pending, have rather acted at ease. If the petitioners had really occupied the land by Sheer force, the respondents would not have waited for full one week before approaching the court for exercise of its jurisdiction under Sec­ tion 145 Cr. P. C. from their appathey, I am inclined to the view that as if no emergency or urgency was involved in the case. The court too seems to have taken the dispute lightly. This is clear from the fact that it took nearly two months to pass the initial order calling upon the opposite party to put in their defence or file their written statement. 7. The learned counsel for the respondent attempted to explain the delay in passing the said order by submitting that the intervening period was spent on service of notice on the petitioner's party. In fact it was not necessary to secure the attandance of the opposite party for passing the initial order. It would be noticed that initial order is passed under sub­ section (1) of section 145 Cr. P. C. which is reproduced as under :-— "Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate.of the first class is sa isfied from a police-report or other informed on that a dispute likely to cause breach of the peace exists concerning any land or water of the boundaries thereof, within the local limits of his jurisdiction, he shall make an rder in writing, standing the grounds of being so satisfied and requiring the parties ^uncerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute." 8. It is clear from the above revision of law that the notice issued to the opposite party prior to passing of initial order was not a legal require­ ment. According the explanation advanced by the learned counsel is not legally acceptable. Moreover that preliminary order by which the parties are called upon to put in their case by filing written statements is in the nature of show-cause notice. Surely for giving show-cause notice no other notice is required to be served on the opposite party. By adopting such course, there would be unnecessary duplication which would frustrate the very purpose of obtaining quick relief which is the prime need of the proceedings under Section 145, Cr. P. C. 9. The other objection raised by the learned counsel for the peti­ tioner was that Civil litigation has been filed in respect of the disputed land and therefore there is no justification to continue the proceedings under Section 145 Cr. P. C. which are of temporary nature and are designed to have stop-gap arrangement until final adjudication of the dispute between the parties by civil Court of competent jurisdiction. 10. To reinforce his argument he has placed reliance on Aijaz Hussaiti v. Qaisar and another (1983 P. Cr. L. .T. 129), wherein it was held: "Moreover proceedings under Section 145, Cr. P. C. are no doubt in nature of stopping arrangement and must in disputes as to immovable property yield to order of the civil Court, which alone are competent to determine questions of title and right of posses­ sion to immovable property. It does not make any difference if the civil Suit was filed before or after the proceedings under Section 145, Cr. P. C. were initiated. As soon as the civil Court has passed the order in respect of the said property, and orders passed by the Magistrate regarding it have to be subservient thereto." 11. The other authority relied upon on this point in the case of Mrs. Sahira Almas and another referred above. In the said case following observations are significant : "It was therefore, not a fit case for proceedings uuder Sec­ tion 145, Cr. P. C. especially after it had been bruoght to the notice of the learned Magistrate that the civil Court was already seized of the matter and had regulated the possession of the shop by declining interim injunction as prayed for the respondent (No. 1) in the matter." 12. In the instant case it is not denied that civil Suit has been filed Jby the respondent against the petitioners in respect of the disputed a land land the said suit is pending in the Court of Senior Civil Judge Gambat. lln view of the above authorities with which T am in full agreement the specific performance against Mst. Khurshid Begum, the present petitioner,, with respect to an agreement for sale dated 15-8-1972 purporting to have been executed by the said lady in his favour agreeing to sell a shop to him which was located in her house. Mst. Khurshid Begum, the present petitioner, also filed a suit against the said Muhammad Shafiq, convicted accused, for the cancellation of the said document. On 6-11-1976, the suit of Mst. Khursbid Begum, the present petitioner, was decreed with compensatory costs and the suit of Muhammad Shafiq, convicted accused, was dismissed. An appeal preferred by Muhammad Shafiq, convicted accused, against the compensatory costs granted against him, but not against the main decree, was allowed and the compensatory costs were set aside. On an application being made by Mst. Khursbid Begum, the pre­ sent petitioner, before the Civil Judge for proceedings to be taken against Muhammad Shafiq, convicted accused, and others, with regard to the forged agreement for sale which had been used before him, the Civil Judge filed a complaint against Muhammad Shafiq, convicted accused, the pre­ sent respondents No. 1 to 3 and the two proclaimed offenders before the Ilaqa Magistrate : Accordingly, notices were issued to Dr. Muhammad Rafiq, Abdul Hamid Kiani and Riaz Masih, respondents Nos. 1 to 3, and Salamat Ali, Abdul Hamid and Mubammnd Shafiq. Salamat Ali and Abdul Hamid were declared proclaimed offenders and later the case of the other accused was separated from theirs. Thus, the case proceeded against four accused persons and on 21-11-1983, the learned Section 30 Magistrate, Toba Tek Singh, convicted Muhammad Shafiq, but acquitted Dr. Muhammad Rafiq, Abdul Hamid Kiani and Riaz Masih, respondent Nos. 1 to 3. Muhammad Shafiq, convicted accused, preferred an appeal against his conviction and sentence and Mst. Khurshid Begum, the present peti­ tioner, filed a revision petition (No. 107-10-R of 1983) against the present respondents Nos. 1 to 3 and the two Proclaimed Offenders for the setting aside of their acquittal and for their retrial. Without taking up both the appeal and the revision petition together, the learned Sessions Judge, Toba Tek Singh, dismissed the revision in limine on 14-12-1983. It appears that the appeal preferred by Muhammad Shafiq, convicted, accused, is still lying pending in the Court of Mr. Ijaz Hussain Gilani, Additional Sessions Judge Toba Tek Singh. Baing aggrieved by the piecemeal disposal of her case, Mst. Khurshid Begum, the present petitioner, has filed the present petition under section 561-A Cr. P. C., for the quashment of the learned Sessions Judge's order. 4. On behalf of the petitioner it is submitted that at the trial, the Prosecuting Inspector did not produce Ahmad Khan Advocate, Abdul Rshman and Mst. Khurshid Begum, the present petitioner, who were the material witnesses in the case, to give evidence. He also did not prove or get exhibited affidavit Exh. A 1 of Abdul Aziz, deceased/petition writer, or the affidavit Exb. 47 of Abdul Hamid Kiani, petition writer/respondent No. 2, which affidavits were proved before the Civil Judge. He also did not prove or get exhibited the judgment dated 6-11-1976 given by the Civil Judge in favour of Mst. Khurshid Begum, the present petitioner. It is further submitted that the learned Sessions Judge should have heard both the appeal and the revision petition together and not piecemeal dealt with the petitioner's revision first in motion. In this connection it is stated that bad both the appeal and the revision petition been heard together, the attention of the learned Sessions Judge wo«!d have been directed t« proceedings under Section 145 Cr. P. C. must yield -:o the said CMlj litigation and could not be continued any longer. 13, For the foregoing reasons, the petition h accepted asd the proceedings referred to above are quasfcid. -'I.iGR) Proceedings quashed,

PLJ 1984 Cr PLJ 1984 Cr. C. [AJK Shariat Court] 385 Present : SARDAR MUHAMMAD ASHRAF KHAN, 7 JAVED ASLAM and Another—Petitioners Versus THE STATE-—Respondent Criminal Misc. No. 230 of 1982, decided oc. 20-10-l?82 (i) Criminal Procedure Code (V of 1898}—

S. 497 (1) Proviso—Minor — Grant of bail to — Petitioner aad others resorting to firing at complainant party in furtherance of common intention of unlawful assembly for putting them to death-­ Held . Mere fact of petitioner being less thaia 16 years of age at dm^ of commission of offence to confer no right upon him to be re.'sas<?C; on bail under Proviso to S. 497 (1)—Held further : Crimsasl :-v.; f killing deceased having been attributed, petitioii&r not to b<? • -^tVi-io' to bail. [P. 387M (ii) Criming :rroc«cire Cod^ V of 1898)—

Si. 497 & 498—Bail—Refusal of—No specific injury to any perse.-. from ccmplainant party attributed to petitioner by firing—Petitions; beiag icic:brf of uclawfv.l assembly firing at complainant party in . '-f -05LT:o?» ideation — Held : Prima facie petiiioner facie peti: no; to b. ibs" t ved ex' coastructive liability in commission of oSfcace of murder acd attempt to murder in case. [P. 387J5 Mr. B. a. Sheikh, Advocate for Petitioner. Ch. Lai Hnsssia, Addl. A. G. for State. Datt of insiitution : 7-8-1982. QKDFJfc This application has been filded on behalf of the petitioner with the P?aysr that ttey ce released on bail in a case pending in the District Cnnxt; Court, Mirpur, against them, under Sections 5, 14/15, Islamic Psna: ! .^'- a read with Sections 302/307, 14S/149 A,P.C. :ae» leading to the filing of the prese&t application are ^•'..->:

a>j ^si-haitsjAiad Khan, the complainant, got his statement recorded c-i- ,-,'•!?<-'2 at Police Station, Bhimber in which it was alleged that at sec-..i 3-,'JG A.M. he alongwtth his two sons, Aurangzeb and Purvez Akls.ar, was sitting in a hotel of one Muhammad Zaman near the Toll Post, 'Bbimber. The petitioners alongwith Muhammad Rashid, Ali. Asghar, Rafique, Muhammad Nawaz, Nasim and four other persons from" Pakistan started firing at them with fire-arms from outside of the hotel which resulted in the death of Purvez Akhtar on the spot by a gun-shot fired by Javed Aslam accused-petitioner with a 12-bore gun and grievous injuries to Aurangzeb and Abdul Rauf. It was further alleged that Muhammad Aslam and Sub : Mumtaz Khan and his son, Muhammad Akram were instigating the aforesaid accused to kill the complainant and his sons. In the statement, the motive for crime was alleged to be an incident of figbt having taken place between the complainant and aforesaid Muhammad Akram, in the year 1977 in which Muhammad Aslam, allegedly, lost his eyes at the hands of the complainant and it was with a view to taking revenge of the above incident that Muhammad Aslam has brought his relatives and few other bad characters from Pakistan who com­ mitted the aforesaid offences. On this statement, a case under Sec­ tion 302/307, 148/149, A P.C. read with Sections 5, 14/15, Islamic' Penal Laws Act, was registered at Police Station, Bhimber on the same day and after investigation, the challan was submitted to the District Criminal Court, Mirpur against the petitioner and others. The petitioners' bail application in the trial Court having been rejected, they have now come to this Court for grant of bail to them. The learned counsel for the petitioners, in support of this application, has urged the following grounds :— (1) That it is a case of further inquiry regarding the guilt of the accused-petitioners because, firstly, the F. I. R. itself has been found doubtful by the investigating agency in as much as five the accused have been found innocent and left out and secondly, there was exchange of firing between the complainant party and accused in the case, as is evident from the statements of three witnesses, recorded under Section 161, Cr. P. C in which they have deposed that Aurangzeb, injured person, had also resorted to firing. (2) That Javed Aslam, petitioner, being below the age of 16 years at the time of occurrence, is entitled to the concession of bail under the proviso to Section 497 (1), Cr. P. C. (3) That no specific injury is attributed to have been caused by Bashir Ahmad, petitioner, to the deceased or injured persons. The learned counsel for the State has vehemently opposed this applica­ tion contending that the petitioners are accused of committing heinous offences of murdering one person and causing grievous injuries to two other persons by fire-arms shots and, as such, they are disentitled to the concession of bail in view of the prohibitive clause of Section 497, Cr. P. C. After giving my due consideration to the arguments addressed at the bar and g »mg through the record of the case including th« police diaries, I am of the opinion that in the facts and circumstances of the case the petitioners do not deserve to be enlarged on bail, From the material oq the record, it cannot be said that do reasonable ground exists to connect the petitioners with the crime with which they are charged by the Prosecu­ tion. The offences of which they are accused, are puni>hable with death or transportation for life and, as such, their case is covered by that provision of law in matter of bail which debars on accused from the grant of bail. The accusation against the petitioners is that they alongwith some other persons appeared on the spot all of a sudden and without any sort of pro­ vocation on tbe part of the complainant and his companions, indiscrimi­ nately opened the fire on them while they were sitting inside the hotel and in consequence of their purported act, one innocent person lost his life while the other two received gun-shot wounds of grievous nature. From the above facts alleged against them prim a facie, no other conclusion can possible be drawn except the one that the petitioners had resorted to firing at the complainant-party in furtherance of common inteniion of unlawful assembly for putting them to death. The mere fact that Javed Aslam ^ accused-petitioner was less than 16 years of age at the time of commission of offence, does not confer upon him a right to be released on bail under the proviso to Section 497 (1), Cr. P. C. In view of the circumstances in which criminal act of killing a person is attributed to him, does not entitle him to this concession. Similarly, the argument of the learned counsel for the petitioners that Bashir Ahmad, petitioner deserves his freedom on bail on the ground that no specific injury to any person from the complainant party is attributed to him by his firing, is of no avail to him. He was a member of unlawful assembly who is furtherance of its common intention referred to above, had also fired at the complainant party and prima facie, he cannot be absolved of the constructive liability B in the commission of offence of murder and attempt to murder. In view of what has been stated above, it cannot be said that to determine the guilt of the petitioners, further inquiry is required thereby entitling them to bail pending such inquiry. For the foregoing reasons, the application of both the petitioners stands rejected. (MK5) Bail refused.

PLJ 1984 Cr PLJ 1984 Cr. C (Karachi) 387 Present : Z. C. VALLIANI, J MUHAMMAD ALI—Appellant versus THE STATE—Respondent Cr. Appl. No. 82/1980, decMed on 4-3-1984. (i) Pakistan Peaal Code (XLV of 1980)—

Ss. 408, 409 & 511 read with Prevention of Corruptien Act (II of 1947)—S. 5 (2)—Criminal breach of tru>t—Offence of—Evidence, appreciation of—Acquittal, basis for—Benefit of doubt—Material and independent P. Ws. not supporting prosecution case — Some P. Ws. declared hostile—Handwriting expert supporting prosecution case—No explanation of 4 years delay in lodging of FIR—Appel­ lant, held, not to be safely connected with commission of offence— P. W. whose signature alleged to have been forged not examined by prosecution — Statement of Handwriting Expert not convincing- Prosecution, held, failed to establish its case beyond reasonable doubt against appellant — Conviction and sentence, set aside by giving benefit of doubt. [P. 390]B, C & D (ii) Criminal Trial—

Witness—Inimical — Statement of—Reliance — Enmity suggested against P. W.—Reliance, held, not to be placed on statement of such Witness without independent corroboration. [P. ]A Mr. Samiuddin SamI, Advocate for Appellant. Mr. Rashid Akhtar, Advocate for State. Date of hearing : 1-3-1984. JUDGMENT Appellant above-named, being aggrieved by judgment dated 27-3-1980 of the Special Judge, Anti-corruption, Karachi in case No. 29/75, by which appellant has been convicted under Section 408/409/511 P.P.C.. read with Section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R.I. for 2 years and to pay fine of Rs. 6.000/- or in default to suffer further R. I. for 6 months, has preferred the above appeal, on the following facts and ground. The case of the prosecution shorn of its trimmings can be stated to be that in the year 1965 appellant Mohammad AH was posted as Cashier in Civil Defence Organisation Karachi, as a public servant. In the month of November/December, 1965 the appellant dishonestly and fraudulently forged the signature of Mrs. Salahuddin proprietor of Asian Rubber Works by obtaing duplicate copy of cash memo. No. 208 for Rs. 870/- pretending that the original cash memo, of the same amount issued by the Asian Rubber Works was lost and by preparing a bill by which withdrawing an amount of Rs. 870/- and thereby criminally mis­ appropriating the said amount. Again in the month of November/December, 1965 the appellant pre­pared a bogus bill of Rs. 4,968/- in favour of Jubilee Engineering Works Karachi and forged the signatures of AH Mohammad Depot Superinteadent and thereby attempted to misappropriate the said amount, but for timely detection made by Mr. Badrul Hassan Farooqui due to which the evil designs of the appellant were detected and he could not succeed in with­ drawing a huge sum of Rs. 4968/-. The matter was reported to Anti-Corruption Establishment Karachi. Police after usual investigation including obtaining the opinion of Hand­ writing Expert and prosecution sanction of the appellant from the compe­tent authority challaned the appellant. When the substance of accusation was read over and explained to the appellant by my learned predecessor the appellant pleaded not guilty and claimed to be tried. Prosecution in support of its case examined P.W. 1 Jamshed Ali Khan Ex. 2 P. W. 2 Badrul Hassan Ex. 3, P. W. 3 Allauddin Ex. P. W. 4 Moor Mohammad Ex. 11, P. W 5 Shah Muhammad Ex 26, P. W. 6 Sallahuddin Ex. 26, P. W. 7 A Z. Mohammad Umer, Ex. 33, P. W. 8 Mohammad Ali son of Mohammad Zaki Ex. 34, P. W. 9 Mohammad Ali son of Mohammad Umer Ex. 36, P. W. 10 Iqbal Kazi Ex. 40, P. W. 11 Abdul Majid Ex. 42 and P. W. 12 Syed Ghulam Sibtain Ex. 45. That learned trial court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named as herein­before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo, of appeal. Learned advocate for the appellant in support of the above appeal sub­ mitted as under:— (0) That these was delay of 4 years in lodging of FIR, which has not at all been explained in FIR. (A) That in FIR 47 name of the appellant is not at all mentioned and no reference to charges for which appellant has been convicted was made. (c) That culprits name in FIR Ex. 47 were made P. Ws. against the present appellant and were let off by department. (d) That appellants explanation given in the departmental report vide Ex. 15, dated 20-12-1965 was accepted by department and conse­ quently no FIR was at all filed against the appellant and he was reinstated. (e) That FIR Ex. 47 gives false date of alleged incident, so as to explain the delay of 4 years. In view of above submissions, the learned counsel for appellant stated, that prosecution has failed to establish its case beyond reasonable doubt. The learned advocate Mr: Rashid Akhtar appearing for the State, at the outset submitted, that he was not supporting the impugned judgment of the learned trial court in view of submissions of learned counsel for appel­ lant, which are fully supported by the record of the learned trial court. I have carefully considered the above submissions made by the learned advocates before me and have gone through R & P of the learned trial court and impugned judgment. P. W. 1 Jamshed AH did not support prosecution case and was declared hostile. P. W. 2 Badrul Hasan statement is not at all straight forward and convincing. He no doubt denied signature of Ali Mohammad Superin­ tendent on Ex. 8/1, but prosecution did not examine P. W. Ali Mohammad, in support of this. In his cross-examination this P. W. admitted, that he was not sure about signatures on Ex. 8/1 and in his report for suspension of appellant, he bad mentioned and these signatures could be that of appel­ lant. He further admitted that during the period in question, there was heavy rush in office with him and appellant. He aiso admitted that appelx lant after his examination Ex.. 15, was reinstated vide Ex. 23 on 3-10-I9o7. P. W. 3 Allauddin in his statement before the learned trial court had not said a word against the appellant, in support of prosecution case. P. W. 5 Shah Mohammad is formal witness about death of P. W. Mohammad Ali. P. W. 6 Salahuddin has not at all supported prosecution case against present appellant, but was not declared hostile. P. W. 7 A. Z Ahmed has not said a word against present appellant. Statement of P.W. 8 Mohammad ,4 AH son of Mohammad Zahir is not at all straight forward and convincing and in view of enmity suggested against him, no reliance can be placed on his statement without independent corroboration which is not all available. P. W. 9 Mohammad Ali son of Mohammad Umer, is magistrate in whose presence specimen signatures of appellant were taken. P. W. 10 Mohammad Iqbal Qazi is also magistrate, who took specimen signatures of appellant and other P. Ws. P.W. 11 Abdul Majid is handwriting expert and has supported prosecution case, that signature on cash memo. 208 are that of appellant. P. W. 12 S. Ghulam Sibtain I. O. of case, who challanged the appellant on 30-5-1975. In my opinion, it would be unsafe to con­ nect the appsllant on basis of above evidence only, specially as FIR was B lodged after 4 years of alleged incident, for which no explanation at all has been given by prosecution. Ex. 23, shows that appellants explanation as accepted and he was reinstated and Ex 47 FIR is based on report of P.W. 8 Vlohammad Ali son of Mihamm id Zahir, who himself had admitted, that le had sent said report without approval of his superior officers. P. W. Ali C \hraed, whose signature appellant is alleged to have forged was not at all sxamined by prosecution, before learned trial court and as such reliance on he statement of Hand Writing Expert alone, (while too is not convincing) would be unsafe in view of the facts and circumstances of present case. In view of this, I find that prosecution has failed to establish its case beyond easonable doubt aginst the appellant. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awardid to him by impugned judgnsnt aad acqiit him by giving him benefit of doubt and discharge the bail bonds executed by appellant in above appeal. (Aq. By.) Appeal allowed.

PLJ 1984 Cr PLJ 1984 Cr. C. (Peshawar) 393 [DB] Present : NAZIR AHMAD BHATTI & ALI HUSSAIN QAZILBASH, JJ. MUHAMMAD YOUSAF & Another—Petitioners versus THE STATE—Respondent Cr. Appeal No. 13/84, heard on 1-4-1984. (i) Pakistan Penal Code (XLV of I860)—

Ss. 307/34—Attempt to commit murder—Offence of—Right of selfdefence—PJea of—No material on record to show appellant having been threatened with any serious attack or imminent danger of any fatal injury to his person—No evidence that complainant (injured) intended to use hoe (at time of occurrence) or cause any injury to appellant—Held : Offence not committed in self-defence. [P. 397] C (ii) Pakistan Penal Code (XLV of I860)—

Ss. 307/34 & 308—Attempt to commit murder—Offence of—Altera­ tion of to that under S 308—Evidence appreciation of—Conviction, basis'for—Sudden quarrel on water stopping resulting in fight and grappling with appellant—No element of premeditation—No previ­ ous enmity between parties—Complainant rushing to attack appellant who firing single pistol shot at him—Appellant not intending to com­ mit murder of complainant nor inflicting such injury as would have resulted in his death—Offence committed by appellant not covered by S. 307 P. P. C. but to fall ander S. 308 P. P. C.—Conviction altered from under S. 307 P.P.C. to that under S. 30i P.P.C. [Pp. 396, 397 & 398] B, D&E PLD 1963 SC 152 re/, (iii) Pakistan Penal Code (XLV of I860)—

S. 307/34—Attempt to commit murder-Offence of—Common in­ tention—Evidence, appreciation of—Acquittal, basis for—Injury attri­ buted to appellant not proved by medical evidence—Prosecution even miserably failing to prove presence of appellant at spot or his taking part in fight—Appellant acquitted of charge. [ Pp. 396 & 398] A&E Sahibrada Akhtar Mnnir, Advocate for Appellant. Mian Muhammad Ajmal, Law Officer for State. Mr. Abdul Aziz Khan, Advocate for Complainant. Date of hearing : 1-4-1984. JUDGMENT Nazir Ahmad Bhatti, J.—Appellants Muhammad Yousaf and Zahir Khan have been convicted under section 307/34 P.P.C. and sentenced to six years R. 1. and a fine of Rs. 10.000/- each, or in default whereof they are to undergo R. I for one and a half years by Malik Isa Khan Afridi, Magistrate under section 30 Cr. P. C. vide judgment dated fc-2-1984. By the present appeal both the appellants have challenged their conviction and sentence. Farman Ghani complainant has also filed Cr. Revision No. 13/ 84 for enhancement of sentence of the appellants. By the present judgment we propose to dispose of the appeal and the revision together. 2. The report of the occurrence lodged by Farman Ghani complainant on 29-4-1982 in P. P. Yar Hussain at 12-10 p. m., where he was taken in injured condition, states that on the said day at 11-30 a. m. he was irrigat­ ing bis tobacco crop from the water of the tube-well of Ajun Khan resident of Yar H Jssain; that suddenly the water stopped whereupon he went to the pump and saw accused Yusuf armed with a pistol and accused Zahir Khan armed with a shovel (Bailcha) standing there; that on his querry both the accused informed him that they had stopped the water and simultaneously accused Zahir Khan gave a shovel blow bitting him on the nose and accused Yusuf fired pistol shot with which he was injured on the chest; that the occurrence had been seen by his maternal uncle Muhammad Nabi and Alam Sher; that the dispute about the water was the only motive for the offence. This report was incorporated in the F. I. R. No. 192 of P. S. Kalu Khan at 13.20 p. m. on the same day. 3. Both the accused were charged under section 307/34 P. P. C., to which they pleaded not guilty and claimed trial. Eight prosecution wit­ nesses were examined by the learned trial Magistrate. Both the accused in their statements under section 342 Cr. P. C. denied the commission of the offence but did not produce any defence. 4. The injured complainant was examined by Dr. Muhammad Farooq on 29-4-182, at the time incharge of Civil Hospital. Kalu Khan. He had gone abroad when the trial commenced and his medical report, Exb. P. K., was proved by P. W. 8 Zam-ul-Abidin, dispenser of the said hospital. According to this medical report the complainant sustained the following injuries :— 1. A fire-arm injury entrance on front of chest near throat, i X J . 2. A fire-arm exit wound on back of chest £" x J. 3. A bruise on nose i" x \". According to this report injuries 1 and 2 were caused by fire arm and injury No. 3 may have been caused by blunt weapon. The said doctor referred the complainant to the Civil Hospital, Mardan, where he was examined by P. W. 5 Dr. Muhammad Salecm on the same day. The com­ plainant was admitted in emergency as a case of firearm injuries to chest. The record showed that the patient was dystenoeic. He remained in the hospital till 13-5-1952. The nature of injuries was grievous. The medical certificate of this doctor is Exh. P. W. 5/1. 5. P. W. 4 Muhammad Israr Khan investigated the case. He went to the spot, prepared the site plan Exh. P. B., recorded the statements of the witnesses, took into possession one shirt and one banyan of the injured complainant having blood stains and cut marks. In cross-examination he stated that he did not recover any blood from the spot. P. W. 6 All Haider D. F. C was entrusted" with warrants under section 204 Cr. P. C. against both the accused who were not available, so he returned the war­ rants unserved. P. W. 7 Muhammad Irshad Khan S. I. registered the case vide F. I. R. Exh. P. A on receipt of murasila, Exh. P. A./l, from P. P. Yar Hussain. 6. There are three eye-witnesses of the occurrence, P.W.I Farman Ghani complainant, P. W. 2 Muhammad Nabi and P. W. 3 Ajun Khan. The complainant has generally corroborated the contents of his report. He has further stated that be and accused Yusuf had grappled with each other when P. W. Ajun Khan arrived and tried to effect separation and during that time accused Yusuf fired a pistol shot with which he was bit on the chest. He has further stated that both the other eye-witnesses reached the spot when he and accused Yusuf were grappling with each other. P. W. 2 Muhammad Nabi has stated that both the accused were standing on the 'vfarkha' where the coroplainaot came and accused £abir Kban gave him a shovel blow when both the accused had started grappling with him. In the meantime, P.W. Ajun Khan arrived and at that time the complainant was grappling with accused Yusuf. P. W. Ajun Khan tried to separate them and caught hold of accused Yusuf who then fired a pistol shot at the complainant who was hit and during that time accused Yusuf rescued him­ self P. W. Ajun Khan. In cross-examination he has admitted that the firing at the complainant had already taken place when he reached them. P. W. 3 Ajun Khan has stated that on the day of occurrence the complain­ ant was irrigating his field from the water cf his pump. He was present in his 'arhaf when he saw accused Yusuf and the complainant grappling with each other. He went near them and started separating both of them. He caught hold of accused Yusuf from his wrist and pulled him towards himself and they got separated. He was holding accused Yusuf and asked 2 or 3 other persons to catch hold the complainant but the latter was not caught.hold of. The complainant came in front of accused Yusuf, who fired a pistol shot with which the complainant was hit on the chest. He had, however, not inquired about the cause of the quarrel from the com­ plainant. In cross-examination this witness has stated that he had not seen accused Zahir Khan present on the spot at the time of occurrence. He also did not see P. W. 2 Muhammad Nabi and P. W. Alam Sher at that time. He had seen pistol in the hands of accused Yusuf but he had not used it till the complainant came in front of the accused after they had both been separated. 7. In so far as the case of accused Zahir Khan is concerned, P. W. Ajun Khan has stated that he did not see him at the spot at the time of occurrence. Although Dr. Muhammad Farooq noticed one bruise on the nose of the complainant but this injury was not seen by P.W. 5 Dr. Muhammad Saleem, who had examined the complainant on the same day. According to the prosecution version appellant Zahir Khan was armed with a shovel and if he had given a blow with this tool, it would have caused very grievous injury to the nose and not only a bruise. The prose­ cution has also not produced any evidence to show as to what happened to that shovel after the occurrence if accused Zahir Khan was also present ind took part in the fight. We have given our serious thought to the case jf this accused and we have come to the conclusion that the prosecution has liserably failed to either prove the presence of accused Zahir Khan at spot or his taking part in the fight. 8. In so far as the case of appellant Yusuf is concerned, the circumstances which come to light after appreciation of the entire evidence pro­ duced in the case are, that there was no previous enmity between the parties; apparently the complainant got annoyed over the stoppage of water and thinking that the appellant had stopped the water started grappling with him; they were grappling with each other and till then the appellant although he was armed with a pistol did not use it; as disclosed by P. W. 3, Ajun Khan the complainant was rushing to attack the appellant when the latter fired a pistol shot injuring him on the chest there is no pre-meditation for the fight and the evidence establishes that it was a sudden affair; . W. 2 Muhammad Nabi appears to be inimical towards the appellants and is also related to the complainant and more over he did not see the occur­ rence of firing as by his own statement he has admitted that when he reached the complainant the firing had already taken place, To our mind P. W. 3 Ajun Khan appears to be a natural witness of the occurrence. He is neither related to any party, nor has he any enmity with any of them. His evidence is, therefore, confidence inspiring. He saw the complainant and appellant Yusuf grappling with each other and he separated them. The complainant was again rushing towards the appellant Muhammad Yusuf when the latter used his pistol and fired only one shot. It has also come in evidence that the complainant was also having a hoe (Ramba) with which he was working in his field. The possibility cannot be ruled out that he was having this implement with him when both the parties had confronted each other. 9. In view of the aforesaid circumstances, the learned counsel for the appellants contended, firstly, that the appellant Muhammad Yusuf had fired a pistol shot at the complainant in self-defenee and if this plea was not accepted then the case did not fall under Section 307 P. P. C. but was covered by section 308 P.P.C. In so far as his first contention is concerned, we do not find any material on the record to show if the appellant was threatened with any serious attack or imminent danger of any fatal injury to his person. There is also no evidence that the complainant intended toj use the hoe or the cause any injury to the appellant. We, therefore, do node find any material on the record to agree with the learned counsel for thej appellant that the latter had committed the offence in self-defence. 10. Regarding the second contention of Sahibzada Akhtar Munir, the learned counsel for the appellants, it shall be noted that in section 307 P. P. C. the intention and knowledge are to commit the murder but the offence fails short of death, whereas in section 308 P. P. C. the intention and knowledge are to commit culpable homicide not amounting to murder in the circumstances which develop beyond the control of the offender. If a person on grave and sudden provocation commits an offence whereby death is caused he would not be guilty of murder but would be guilty of culpable homicide not amounting to murder. This circumstance can be looked at from another angle, that in a sudden fight and in grappling with the complainant the accused in order to get rid of the complainant commits an offence without any pre-raeditation but with the knowledge that it may cause the death, he would be guilty of an offence under Section 306 P. P. C. and not section 307 P. P. C. In the case of AH Zaman y. The State (P L D 1963 Supreme Court 152) the responsibility for the out-break of violation was on the complainant side in a sudden fight and fire-arms were used by the accused, the latter were deemed to have caused culpable homicide not amounting to murder and conviction from under Section 307 P.P.C. was changed to one under section 308 P.P C. The circumstances of this case are more or less like the present case. The complainant confronted the appellant, a quarrel took place leading to grap­ pling and in the heat of passion the appellant fired a pistol shot. The fact that he fired only one shot would show that he did not intend to cause the death of the complainant and moreover he had used the pistol as a last report. They were quarreling and grappling with each other and then the pistol was used by the appellant. These circumstances will show that the appellant did not intend to commit the murder of the complainant, nor he had inflicted him such injury as would result in his death. The fact that there was neither any previous enmity between the parties, nor any pre-meditation on the part of the appellant to commit the offence, his action can only be seen in the light of the provision of section 306 P. P. C. We have, therefore, arrived at the conclusion that the oifence committed by the appellant Muhammad Yusuf is not covered by section 307 P. P. C. but fails under Section 308 P. P. C. 11. Next is the question of quantum of sentence. The maximum sentence under Section 307 P P.C. is imprisonment for life and the appellant Muhammad Yusuf was sentenced to undergo six years imprisonment. Keep­ ing this proportion in mind and the maximum sentence of seven years as provided in section 308 P P. C., we are firm in our mind that the sentence of two years R. I. would serve the ends of justice. 12. The upshot of the above discussion is that the appeal is accepted, appellant Zahir Khan is acquitted of the offence with which he has been charged and his sentence is set aside. He shall be set at liberty forthwith if not wanted in any other case. The conviction of appellant Muhammad Yusuf is altered from under Section 307 P. P. C. to under Section 308 P. P. C. and sentence is reduced to two years, R. I. and a fine of Rs. 5.030/- in default of payment of which he shall suffer further six months R. I. An amount equal to one half of the fine, if recovered, shall be paid as compensation to the complainant. The revision-petition is dismissed. (Aq. By.) Appeal accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. (Peshawar) 393 [DB] Present : NAZIR AHMAD BHATTI & ALI HUSSAIN QAZILBASH, JJ. MUHAMMAD YOUSAF & Another—Petitioners versus THE STATE—Respondent Cr. Appeal No. 13/84, heard on 1-4-1984. (i) Pakistan Penal Code (XLV of I860)—

Ss. 307/34—Attempt to commit murder—Offence of—Right of selfdefence—PJea of—No material on record to show appellant having been threatened with any serious attack or imminent danger of any fatal injury to his person—No evidence that complainant (injured) intended to use hoe (at time of occurrence) or cause any injury to appellant—Held : Offence not committed in self-defence. [P. 397] C (ii) Pakistan Penal Code (XLV of I860)—

Ss. 307/34 & 308—Attempt to commit murder—Offence of—Altera­ tion of to that under S 308—Evidence appreciation of—Conviction, basis'for—Sudden quarrel on water stopping resulting in fight and grappling with appellant—No element of premeditation—No previ­ ous enmity between parties—Complainant rushing to attack appellant who firing single pistol shot at him—Appellant not intending to com­ mit murder of complainant nor inflicting such injury as would have resulted in his death—Offence committed by appellant not covered by S. 307 P. P. C. but to fall ander S. 308 P. P. C.—Conviction altered from under S. 307 P.P.C. to that under S. 30i P.P.C. [Pp. 396, 397 & 398] B, D&E PLD 1963 SC 152 re/, (iii) Pakistan Penal Code (XLV of I860)—

S. 307/34—Attempt to commit murder-Offence of—Common in­ tention—Evidence, appreciation of—Acquittal, basis for—Injury attri­ buted to appellant not proved by medical evidence—Prosecution even miserably failing to prove presence of appellant at spot or his taking part in fight—Appellant acquitted of charge. [ Pp. 396 & 398] A&E Sahibrada Akhtar Mnnir, Advocate for Appellant. Mian Muhammad Ajmal, Law Officer for State. Mr. Abdul Aziz Khan, Advocate for Complainant. Date of hearing : 1-4-1984. JUDGMENT Nazir Ahmad Bhatti, J.—Appellants Muhammad Yousaf and Zahir Khan have been convicted under section 307/34 P.P.C. and sentenced to six years R. 1. and a fine of Rs. 10.000/- each, or in default whereof they are to undergo R. I for one and a half years by Malik Isa Khan Afridi, Magistrate under section 30 Cr. P. C. vide judgment dated fc-2-1984. By the present appeal both the appellants have challenged their conviction and sentence. Farman Ghani complainant has also filed Cr. Revision No. 13/ 84 for enhancement of sentence of the appellants. By the present judgment we propose to dispose of the appeal and the revision together. 2. The report of the occurrence lodged by Farman Ghani complainant on 29-4-1982 in P. P. Yar Hussain at 12-10 p. m., where he was taken in injured condition, states that on the said day at 11-30 a. m. he was irrigat­ ing bis tobacco crop from the water of the tube-well of Ajun Khan resident of Yar H Jssain; that suddenly the water stopped whereupon he went to the pump and saw accused Yusuf armed with a pistol and accused Zahir Khan armed with a shovel (Bailcha) standing there; that on his querry both the accused informed him that they had stopped the water and simultaneously accused Zahir Khan gave a shovel blow bitting him on the nose and accused Yusuf fired pistol shot with which he was injured on the chest; that the occurrence had been seen by his maternal uncle Muhammad Nabi and Alam Sher; that the dispute about the water was the only motive for the offence. This report was incorporated in the F. I. R. No. 192 of P. S. Kalu Khan at 13.20 p. m. on the same day. 3. Both the accused were charged under section 307/34 P. P. C., to which they pleaded not guilty and claimed trial. Eight prosecution wit­ nesses were examined by the learned trial Magistrate. Both the accused in their statements under section 342 Cr. P. C. denied the commission of the offence but did not produce any defence. 4. The injured complainant was examined by Dr. Muhammad Farooq on 29-4-182, at the time incharge of Civil Hospital. Kalu Khan. He had gone abroad when the trial commenced and his medical report, Exb. P. K., was proved by P. W. 8 Zam-ul-Abidin, dispenser of the said hospital. According to this medical report the complainant sustained the following injuries :— 1. A fire-arm injury entrance on front of chest near throat, i X J . 2. A fire-arm exit wound on back of chest £" x J. 3. A bruise on nose i" x \". According to this report injuries 1 and 2 were caused by fire arm and injury No. 3 may have been caused by blunt weapon. The said doctor referred the complainant to the Civil Hospital, Mardan, where he was examined by P. W. 5 Dr. Muhammad Salecm on the same day. The com­ plainant was admitted in emergency as a case of firearm injuries to chest. The record showed that the patient was dystenoeic. He remained in the hospital till 13-5-1952. The nature of injuries was grievous. The medical certificate of this doctor is Exh. P. W. 5/1. 5. P. W. 4 Muhammad Israr Khan investigated the case. He went to the spot, prepared the site plan Exh. P. B., recorded the statements of the witnesses, took into possession one shirt and one banyan of the injured complainant having blood stains and cut marks. In cross-examination he stated that he did not recover any blood from the spot. P. W. 6 All Haider D. F. C was entrusted" with warrants under section 204 Cr. P. C. against both the accused who were not available, so he returned the war­ rants unserved. P. W. 7 Muhammad Irshad Khan S. I. registered the case vide F. I. R. Exh. P. A on receipt of murasila, Exh. P. A./l, from P. P. Yar Hussain. 6. There are three eye-witnesses of the occurrence, P.W.I Farman Ghani complainant, P. W. 2 Muhammad Nabi and P. W. 3 Ajun Khan. The complainant has generally corroborated the contents of his report. He has further stated that be and accused Yusuf had grappled with each other when P. W. Ajun Khan arrived and tried to effect separation and during that time accused Yusuf fired a pistol shot with which he was bit on the chest. He has further stated that both the other eye-witnesses reached the spot when he and accused Yusuf were grappling with each other. P. W. 2 Muhammad Nabi has stated that both the accused were standing on the 'vfarkha' where the coroplainaot came and accused £abir Kban gave him a shovel blow when both the accused had started grappling with him. In the meantime, P.W. Ajun Khan arrived and at that time the complainant was grappling with accused Yusuf. P. W. Ajun Khan tried to separate them and caught hold of accused Yusuf who then fired a pistol shot at the complainant who was hit and during that time accused Yusuf rescued him­ self P. W. Ajun Khan. In cross-examination he has admitted that the firing at the complainant had already taken place when he reached them. P. W. 3 Ajun Khan has stated that on the day of occurrence the complain­ ant was irrigating his field from the water cf his pump. He was present in his 'arhaf when he saw accused Yusuf and the complainant grappling with each other. He went near them and started separating both of them. He caught hold of accused Yusuf from his wrist and pulled him towards himself and they got separated. He was holding accused Yusuf and asked 2 or 3 other persons to catch hold the complainant but the latter was not caught.hold of. The complainant came in front of accused Yusuf, who fired a pistol shot with which the complainant was hit on the chest. He had, however, not inquired about the cause of the quarrel from the com­ plainant. In cross-examination this witness has stated that he had not seen accused Zahir Khan present on the spot at the time of occurrence. He also did not see P. W. 2 Muhammad Nabi and P. W. Alam Sher at that time. He had seen pistol in the hands of accused Yusuf but he had not used it till the complainant came in front of the accused after they had both been separated. 7. In so far as the case of accused Zahir Khan is concerned, P. W. Ajun Khan has stated that he did not see him at the spot at the time of occurrence. Although Dr. Muhammad Farooq noticed one bruise on the nose of the complainant but this injury was not seen by P.W. 5 Dr. Muhammad Saleem, who had examined the complainant on the same day. According to the prosecution version appellant Zahir Khan was armed with a shovel and if he had given a blow with this tool, it would have caused very grievous injury to the nose and not only a bruise. The prose­ cution has also not produced any evidence to show as to what happened to that shovel after the occurrence if accused Zahir Khan was also present ind took part in the fight. We have given our serious thought to the case jf this accused and we have come to the conclusion that the prosecution has liserably failed to either prove the presence of accused Zahir Khan at spot or his taking part in the fight. 8. In so far as the case of appellant Yusuf is concerned, the circumstances which come to light after appreciation of the entire evidence pro­ duced in the case are, that there was no previous enmity between the parties; apparently the complainant got annoyed over the stoppage of water and thinking that the appellant had stopped the water started grappling with him; they were grappling with each other and till then the appellant although he was armed with a pistol did not use it; as disclosed by P. W. 3, Ajun Khan the complainant was rushing to attack the appellant when the latter fired a pistol shot injuring him on the chest there is no pre-meditation for the fight and the evidence establishes that it was a sudden affair; . W. 2 Muhammad Nabi appears to be inimical towards the appellants and is also related to the complainant and more over he did not see the occur­ rence of firing as by his own statement he has admitted that when he reached the complainant the firing had already taken place, To our mind P. W. 3 Ajun Khan appears to be a natural witness of the occurrence. He is neither related to any party, nor has he any enmity with any of them. His evidence is, therefore, confidence inspiring. He saw the complainant and appellant Yusuf grappling with each other and he separated them. The complainant was again rushing towards the appellant Muhammad Yusuf when the latter used his pistol and fired only one shot. It has also come in evidence that the complainant was also having a hoe (Ramba) with which he was working in his field. The possibility cannot be ruled out that he was having this implement with him when both the parties had confronted each other. 9. In view of the aforesaid circumstances, the learned counsel for the appellants contended, firstly, that the appellant Muhammad Yusuf had fired a pistol shot at the complainant in self-defenee and if this plea was not accepted then the case did not fall under Section 307 P. P. C. but was covered by section 308 P.P.C. In so far as his first contention is concerned, we do not find any material on the record to show if the appellant was threatened with any serious attack or imminent danger of any fatal injury to his person. There is also no evidence that the complainant intended toj use the hoe or the cause any injury to the appellant. We, therefore, do node find any material on the record to agree with the learned counsel for thej appellant that the latter had committed the offence in self-defence. 10. Regarding the second contention of Sahibzada Akhtar Munir, the learned counsel for the appellants, it shall be noted that in section 307 P. P. C. the intention and knowledge are to commit the murder but the offence fails short of death, whereas in section 308 P. P. C. the intention and knowledge are to commit culpable homicide not amounting to murder in the circumstances which develop beyond the control of the offender. If a person on grave and sudden provocation commits an offence whereby death is caused he would not be guilty of murder but would be guilty of culpable homicide not amounting to murder. This circumstance can be looked at from another angle, that in a sudden fight and in grappling with the complainant the accused in order to get rid of the complainant commits an offence without any pre-raeditation but with the knowledge that it may cause the death, he would be guilty of an offence under Section 306 P. P. C. and not section 307 P. P. C. In the case of AH Zaman y. The State (P L D 1963 Supreme Court 152) the responsibility for the out-break of violation was on the complainant side in a sudden fight and fire-arms were used by the accused, the latter were deemed to have caused culpable homicide not amounting to murder and conviction from under Section 307 P.P.C. was changed to one under section 308 P.P C. The circumstances of this case are more or less like the present case. The complainant confronted the appellant, a quarrel took place leading to grap­ pling and in the heat of passion the appellant fired a pistol shot. The fact that he fired only one shot would show that he did not intend to cause the death of the complainant and moreover he had used the pistol as a last report. They were quarreling and grappling with each other and then the pistol was used by the appellant. These circumstances will show that the appellant did not intend to commit the murder of the complainant, nor he had inflicted him such injury as would result in his death. The fact that there was neither any previous enmity between the parties, nor any pre-meditation on the part of the appellant to commit the offence, his action can only be seen in the light of the provision of section 306 P. P. C. We have, therefore, arrived at the conclusion that the oifence committed by the appellant Muhammad Yusuf is not covered by section 307 P. P. C. but fails under Section 308 P. P. C. 11. Next is the question of quantum of sentence. The maximum sentence under Section 307 P P.C. is imprisonment for life and the appellant Muhammad Yusuf was sentenced to undergo six years imprisonment. Keep­ ing this proportion in mind and the maximum sentence of seven years as provided in section 308 P P. C., we are firm in our mind that the sentence of two years R. I. would serve the ends of justice. 12. The upshot of the above discussion is that the appeal is accepted, appellant Zahir Khan is acquitted of the offence with which he has been charged and his sentence is set aside. He shall be set at liberty forthwith if not wanted in any other case. The conviction of appellant Muhammad Yusuf is altered from under Section 307 P. P. C. to under Section 308 P. P. C. and sentence is reduced to two years, R. I. and a fine of Rs. 5.030/- in default of payment of which he shall suffer further six months R. I. An amount equal to one half of the fine, if recovered, shall be paid as compensation to the complainant. The revision-petition is dismissed. (Aq. By.) Appeal accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 398 [DB] Present : JAVAID IQBAL, C. J, & ABDUL WAHEED, J MUNIR AHMAD-Appellant versus THE STATE—Respondent Cr. Appl. No. 979/80, and M. R. No. 236/80 decided on 25-3-1984. (i) Pakistan Penal Code (XLV of I860)—

S. 302—Murder, offence of—Evidence, appreciation of — Convic­ tion, basis for—Eye-witnesses disinterested and impartial having no ermity or malice for deposing falsely against appellant—Ocular evidence falsifying defence version — Recovery of blood-stained weapon and evidence, amply corroborating testimony f eye-wit­ nesses—Occurrence taking place in broad day-light near wagonstand—Prosecution evidence proving guilt of appellant beyond any shadow of doubt—Appellant also not assailing conviction under section 302 P.P.C.—Conviction maintained. ^Conviction]. [P. 3QT]A (ii) Pakistan Penal Code (XLV of i860)— —S. 302—Murder—Sentence for— Lesser sentence — Plea of—Evi­ dence, appreciation of—Offence committed on assumed notion of vindicating family honour—Held : Extreme penalty of death not to be called tor—Death sentence altered to life imprisonment, [P, 404JJ Kb. Sultan Ahmed, Advocate assisted by Ch. Ghulam Murteza Khan, Advocate for Appellant. Mr. M. Arif Sajjad, Advocate for State. Kb. M. Iqbal Butt, Advocate for Complainant. Dates of bearing : 20 & 25-3-1984. JUDGMENT Abdul Waheed, J.—Munir Ahmad son of Shauq Muhammad aged 50 years and his consanguine brother, namely, Barkat Navid, aged 30 years and consanguine sister, Mst. Musarrat Ruhi, aged 32 years, were tritd for the murder of Muhammad Boota alias Qdmar-uz-Zaraan, aged 24/25 years. Wmle Munir Ahmad was charged under Section 302 P.P.C., the other two were charged under Sections 302/109 P.P.C. The learned Sessions Judge, Sialkot vide his judgment dated 17th of July, 1980, while acquitting Barkat Navid and Msi Musarrat Ruhi on benefit of doubt convicted Munir Ahmad under Section 302 P.P C. and sentenced him to death and to pay a fine of Rs. 10.00J - or in default to suffer R. I. for six months. It was directed that the fine, if realised, be paid to Mst, Inayat Bibi, mother of the deca»sd as compensation under Section 544-A Cr. P. C. Munir Ahmad has filed an appeal against his conviction and sentence. The learned trial court also has snbmitted reference under Section 374 Cr. P. C. for con­ firmation of the sentence of death. Mst. Inayat Bibi, mother of the deceased, has filed a petition for Special Leave to Appeal against the acquittal of Barkat Navid and Mst. Musarrat Ruhi. This judgment shall dispose of al! the three matters. 2. The occurrence took place on 21st of July, 1978, at 3-00 p.m.at the Wagon Stand, Kotli Loharan, about five miles away from Police Station Head Marala, District Sialkot. It was reported vide statement Ex. PE by Abdur Razzak P. W. 21 who is not related to either of the parties but was running a beef shop at the place of occurrence, to A.S.I. Manzoor Hussain P. W. 29 on the same date at 3-45 p.m. at Chowk Kotli Loharan, where he was present on patrol duty. On the basis of the statement Ex. PE a case under Section 302 P. P. C. was registered at Police Station Head Marala on the same date at 4-15 p.m. vide a formal F.I.R. Ex. PE/1 re­ corded by M.H.C. Muhammad Ibrahim P. W. 5. 3. The prosecution case set up in the F.I.R. was that on 21st of July, 1978, at 3-00 p.m. Abdur Razzaq P. W. 21 was present at his beef shop situate at the Wagon Stand, Kotli Loharan. Muhammad Siddique P.W. 18 and Manzoor Ahmad P. W. 19 were also present there. The appellant who was a resident of Zafarwal and in the days of occurrence was residing at Kotli Loharan with his consanguine sister, namely, Mst. Musarrat Ruhi, a lady health visitor and the acquitted co-accused, came there carrying a bag in his hand. A wagon was standing in front of the shop of Abdur Razzaq P. W 21. The deceased was sitting in the wagon. The appellant also entered the wagon v dragged the deceased out of the wagon from his hair and gave a blow on his head with a toka as a result of which the deceased fell down and started bleedings from his head. T<he appellant inflicted on the deceased more injuries with successive blows with bis toka. The appellant also chopped off the right an of the deceased saying that he had been touching his sister with it. The deceased to the injuries at the spot. The appellant waving his toka declared that he had killed a pig and if any body came near, he would meet the same fate. The occurrence was seen by Muhammad Siddique P. W. 18, Manzoor Ahmad P. W: 19, Muhammad Suleman P. W. 20 and Abdur Razzak P. W. 21 besides Muhammad Siddique Butt who was not produced. No body out of fear went near the deceased who decamped with the blood-stained toka, 4 The motive for tbe crime allegedly was that Mst. Musarrat Ruhi, the acquitted co-accused, had secretly contracted a marriage with the deceased about four months prior to the occurrence. However, the relations between the spouses could not remain cordial. The deceased fre­ quently visited Kotli Loharan where Mst, Musarrat Ruhi was posted as a lady health visitor for the revival of the matrimonial relations. However, the marriage was not approved of by the family of Mst. Musarrat Ruhi and she out of fear of her brothers was not responsive. The deceased gave wide publicity to his infatuation for Mst. Musarrat Ruhi even in news­ papers. The appellant and Barkat Navid, his other acquitted co-accused, were feeling incensed against him on this account and, therefore, the appellant killed the deceased with the toka. 5. A.S.I. Manzoor Hussain P. W. 29 investigated the case. After recording the statement Ex. PE of Abdur Razzak P. W. 21 at Chowk Kotli Loharan, he repaired to the spot. On reaching there he prepared injury statement Ex PV and inquest report Ex. P. W. in respect of the dead body and despatched the same to the mortuary for post-mortem examination. He collected blood-stained earth the spot vide memo. Ex. PH and sealed it into a parcel. He arrested the appellant on 22nd July, 1978, removed from his blood-stained clothes viz. shirt Ex. P. 7 and chadar Ex. P. 8 and took them into possession vide memo. Ex. PJ. On 24th July, 1978. the appellant while in custody got recovered blood-stained toka Ex. P. 17. The A.S.I, took it into possession vide memo. Ex. PL. and made it into a sealed parcel. The recovery memo. Ex. PJ was attested by F. C. Jahan Khan P. W. 10 and A S.I. Manzoor Hussain P. W. 29 besides Malik Muhammad Yousaf (not produced). The recovery memo. Ex. PL was attested by Ghulab Din P. W. 12 and A.S.I. Manzoor Hussain P. W. 29 besides Malik Muhammad Yousaf (given up). 6. The Chemical Examiner vide his report Ex. PX and the Serologist vide his report Ex. PY observed that the blood-stained earth, shirt, chadar and toka recovered in this case were stained with human blood. On the completion of the investigation the appellant was challanged under Sec­ tion 302 P.P.C. for the murder of the deceased. 7. The challan case against the appellant came up for trial in the court of the learned Sessions Judge, Sialkot, on 24th of February, 1980. On the same date Mst. Inayat Bibi, mother of the deceased, had filed a complaint Ex. PR before the Ilaqa Magistrate alleging that the acquitted co-accused had abetted the appellant to commit the murder of the deceas­ ed. According to her, she had been assured by the police that all the three would be challanged for the murder. The Illaqa Magistrate sent the ' complaint on the same date to the learned Sessions Judge who vide his order dated 24th February, 1980, summoned the acquitted two co-accused. also and proceeded with the trial of the appellant and the acquitted two accused in the complaint case, adjourning the proceedings in the challan case sine die. 8. On 22nd of July, 1978 at 12.00 uoon Dr. Abdur Rauf Saddal P. W. 1 performed autopsy on the dead body of the deceased and observed the following injuries : — "(I) Incised wound on the top right parietal bone. 16 c.m. x 1 c.m. fracture of bone, brain matter was coming out of the wound. (21 An incised wound about 2 c.m. in front of injury No. 1. 5 c.m x 1 c.m. x connected with injury No. 1 and the bone as fractured and brain matter was coming out of the wound. (I') An incised wound bone deep about 7 c.m. above the right ear, c.m. x 1 c,m. brain matter was coming out of the wound. (4) An incised wound about 3 c.m. anterior to injury No. 3, 18 c.m. a 1 c.m. Bone was cut and the brain matter was coming out of the wound. (f) Several incised wounds starting from the top of frontal bone below to the nasal bone, all on the right side 8 c.m. x 1.5 c.m. and 4 c.m. : 1 c.m. Injury above the right eye brow, brain matter was coming out of the fractured bones with right eye totally destroyed. (6) Five incised wounds starting from the lower range of above injuries to the lower end of right chin, 7 c.m. : 1.5 c.m. and 5 c.m. . 1 c.m. bone was cut under each injury. (8) An incised wound on the left upper eye brow which has cut and brain matter was coming out of it eye was completely damaged, 4.5 c.m. x 1 c.m. x bone cut. (91 An incised wound on the left cheek 3 c.m. x I c.m. x bone cut. (10) An incised wound about 1 c.m, below injury No. 9, 2.5 c.ra. X 1 c.m. bone cut. (11) An incised wound on the right fire-arm on the anterior lateral and middle 3 c.m. % 8 m.m. x 6 mm. (12) An incised wound about 4 e.m. below injury No. 11, 1.5 c.m. \ 6 mm. . 5 mm. (13) An incised amputation complete about 1.5 c.m. below the right wrist joint, all structures were cut". Jn the opinion of the medical officer, the cause of death was severe shock and haemorrhage as a result of injuries Nos, I to 6. 8 to 10 and 13 which were grievous and dangerous to life and were sufficient to cause death in the ordinary course of nature. Injuries Nos. 7, 11 and 12 were simple in nature. All the injuries had been caused by sharp-edged weapon. The probable interval between injuries and death was within one to five minutes and between the death and the post-mortem examination about 21 hours. Ex. PA is the post-mortem examination report and Ex. PA/I and Ex. PA/2 are the diagrams showing the locale of the injuries. 9. The appellant and his acquitted co-accused pleaded not guilty to the charges under Section 302 P.P C. against the appellant and 302/109 P P.C. against the acquitted co-accused. When examined under Section 302 Cr. P. C., the apoellant denied that Mst. Musarrat Ruhi had contracted a a marriage with the deceased. He denied the other allegations also as well as the recoveries attributed to him. He took up the following pleas. "The deceased after having forged Nikah Nama Form proclaimed Musarrat Ruhi as his wile. He used to publicise the stories of his love and infatuation with her even in press and frequently shad­owed my sister Musarrat Ruhi who neither wanted to marry him nor to keep any connection with him. On the day of occurrence, when I was proceeding to the mosque to offer Jumma prayer, Qamar-uz«2aman incidentally met me at Wagon Stand, Kotli Loharan. On my sight he called me out and told me that he was going to have all of us arrested. He further told me that he had learnt that Musarrat Ruhi had gone to Sialkot to attend a Departmental meeting and that he wanted to get her arrested as well. He wanted to take her to his house as wife. He further told me that if Musarrat Ruhi refused, he would kill her as he had already lost everything in her love. He also told me that he would disfigure her face by acid and that he could not live without her. 1 asked him to refrain from such averments and advised him to give up shadowing Musarrat as he had already brought much disgrace to the whole of our family and tribe and, therefore, be should quietly leave that place. On this, there was an exchange of abuses between us which was over heard by a number of passers by. From this conduct of his, I got so much infuriated that 1 picked up a toka from the shop of Abdur Razzaq P. W., lost all sense of intellect and unc j er the impulse of grave and sudden provocation and in state of extreme anger attacked him and caused him numerous injuries. On arrival of the police, I myself appeared. The police had come to the spot on information by some passerby at Head Marala. The toka which has been planted on me was not the weapon used by me but 1 had used the Bughda Abdur Razzaq Qassab. The police deliberated with Manzoor, Siddiq and Suleman P. Ws. and decided that the Bughda of Abdur Razzaq should not be planted on me otherwise Abdur Razzaq would be held as accused, la order to save Abdur Raizaq from this situation, he was cited as a false witness, otherwise this occurrence happened at such a spur of the moment that none could see it. There was no wagon at the spot. Neither I dragged the deceased down the wagon. My so-called arrest on the second day is also fictitious. I have one real sister and one real brother while J have four consanguine sisters and brother." 10. The acquitted co-accused also denied ihe prosecution case against them and adopted the p!ea as raised by the appellant. Mst. Musarrat Ruhi further pleaded as follow: — "The deceased had allured me to come to Rawalpindi were he had promised to procure an over sea service for me. I paid a few visits to him in this connection. Ultimately he proved to be an imposter and felt infatuated to me and wacitr? to have me as his wife which I refused. He had publicised fa.; love with me every where including press. I felt disgusted and refused to see him any more. He fabricated Nikah Nama Ex P. B. and falsely claimed myself to be his wife. On the day of occurrence, I had attended a meeting at Sialkot. In the evening I came to know about this occurrence". 18. Neither the appellant nor the acquitted co-accused adduced any evidence in defence. 12. The prosecution case against the appellant rested on the ocular account as furnished by Muhammad Siddique P. W. 18, Manzoor Ahmad P. W. 19, Muhammad Sulman P. W. 20 and Abdur Razzaq P. W. 21. The occurrence took place admittedly at the Wagon Stand, Kotli Loharan, near the shop of Abdur Razzaq P. W. 21. All the eye-witnesses deposed that the deceased bad taken a seat in a wagon standing at the Wagonstand when the appellant came there armed with a toka, he pulled the deceased out of the wagon and inflicted on him numerous blows with his toka. He also chopped of the hand of the deceased shouting that the pig was touching the body of his sister with that hand. They were quite dis­ interested and impartial witnesses. They were not ascribed any animu or malice for deposing falsely against the appellant. Their version falsifisc the plea of the appellant that he and the deceased aad exchanged abuses just before the occurrence The recovery of blood-stained toka Ex. P 1. at the instance of the appellant as supported by Gulab Din Chowkidai P. W. 12 and A. S. I. Manzoor Hussain P. W. 20 and the medical evidence provided by Dr. Abiur Rauf Saddal P W. 1 amply corroborated the testimony of the eye-witnesses, This evidence proved beyond any shadow of doubt that the offence of the appellant amounted to murder punishable under Section 302 P. P. C. The learned counsel for the appellant also has not assailed the conviction of the appellant under Section 302 P. P. C, We accordingly maintain the conviction. 13. As regards the sentence, however, it has been argued by the learned counsel for the appellant that the circumstances which precipitated the commission of the crime manifestly justified the imposition of lesser penalty. This argument is not without force. It appears that Mst. Musarrat Ruhi. the acquitted co-accused, had contracted marraiage with the deceased clandestinely but since the marriage offended against the established norms of our social life, Mst Musarrat Ruhi either under the influence of her family members or on account of her disillusionment and disenchantment with the deceased resiled and took steps to wringle out of the bondage The deceased turned out to be very obstinate and availed of many measures in Court and outside, to woo and get her back. He went to the extent of publicising in newspapers his infatuation for Mst. Musarrat Ruhi. This obviously brought ignomy to the family of Mst. Mu«arrat Ruhi. The deceased was approached to refrain from his embarrassing pursuit and jwhen he declined to oblige, the appellant out of sheer exasperation killed [him. In the circumstances, since the appellant committed the offence ajon the assumed notion of vindicating the family honour, the extreme jpenalty of death was not called for. Therefore, we alter the sentence of jdeath to imprisonment for life. The sentence of death is not confirmed. The sentence of fine also is remitted. While computing the period of sentence, the jail authorities shall give the appellant benefit of the provision of section 382-B Cr. P. C. 14. With the above reduction in the quantum of sentence, this appeal is dismissed. 15. Mst. Inayat Bibi, mother of the deceased, also filed Criminal P. S. L. A. No. 81-1980 assailing the acquittal of Barkat Navid and Mst. Musarrat Ruhi. The allegation against them was that they had instigated the appellant to kill the deceased. However, no direct evidence was adduced in support of this allegation. Attempt was made to prove the same by circumstantial evidence. The first such circumstances was a report Ex. PC which was lodged by the deceased at Police Post Nasirabad, Police Station Sadar, Rawalpindi Cantt,, on 22nd May, 1978, i. e, two months prior to the occurrence alleging that the brother of Mst Musarrat Ruhi had assaulted him and he apprehended danger to his life from her family members, Second circumstance was that seven or eight days before the occurrence Barkat Navid had abused Mst. Inayat Bibi, mother of the deceased, asking her to direct the deceased, her son, to divorce Mst. Musarrat Ruhi because otherwise he would be killed. Inayat Ullah P. W. 14 and Muhammad Siddiquc P. W. 16, residents of Zafarwal, were examined to testify to this circumstance. The third circumstance in the chain was the statement of Muhammad Hussain P. W. 22 that eight or nine days before the occurrence Mst. Musarrat Ruhi asked him to bring the deceased to Kotli Loharan and he did so but %vhen the deceased came to the house of Mst. Musarrat Ruhi, Barkat Navid, .Mst. Musarrat Ruhi and their sisters quarrelled with him. Three or four days afterwards he was again asked by Mst. Musarrat Ruhi to bring the deceased to Kotli Loharan but in view of the previous conduct of her family members he did not do so. All these circumstances were taken into consideration by the learned trial court and it held for very vsau reasons that charge of abetment against Barkat Navid and Mst. Musarrat Ruhi had not been sub­ stantiated. We have heard the learned counsel for Mst. Inayat Bibi. He has not been able to assail any of the reasons which prevailed with the learned trial court in disbelieving the charge of abetment against Barkat Navid and Mst. Musarrat Ruhi. We, therefore, concur in the rinding of the learned trial Court and finding no force in the Criminal P S. L. A. No. 81-1980 dismiss the same in limme. Aq. By.) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 405 Present : GHULAM MUJADDID MIRZA, J SHAKEEL ANJUM~-Petit:oner versus THE STATE—Respondent Cr. Misc. No. 1372-B of 1984, decided on 20-6-1984. (i) Criminal Procedure Code (V of 1898)—

S. 497 — Bail — Application for — Bail though previously re­ fused once by Additional Sessions Judge as well as by Magistrate him­ self, second application for bail entertained and allowed by Magistrate on flimsy ground of marriage of petitioner's sister—Held': Magistrate to be debarred for all intents and purposes to entertain second application for bail. [Pp. 406 & 407J/1 (ii) Judge—

Conduct of—Magistrate taking special pains not only to justify his order of bail but also going out of way to dismiss application moved by complainant for cancellation of bail — Held : Such highly illegal and improper conduct to reflect upon integrity of Maeistrate. [P. 407[J5 (iii) Judge—

Malpractice by—Effect of—Accused after waiting for borne time after rejection of application by Magistrate as well as by Sessions Judge again approaching same Magistrate through back door and managing his release on bail—Held : Entire judicial career of u.Oker, indulging in such malpractice to be likely to be ruined. |P. 407 T M" Rafiq Ahmad Bajwa, Advocate for Petitioner. Syed Zuifiqar Haider, Advocate for State. Mr. Arsbad Vjrk, Magistrate Gujranwala in person. Date of hearing : 20-6-1984. ORDER Shakeel Anjurn son of Mohammad Ramzan, Kashmiri, resident of Chah Malhian Wala, Gujranwala City, was challaned under Section 307,' 452. Report was lodged by Mohammad Sharif with regard to an occurrence alleged to have taken place on 25-9-83 at about 4 p. m. in the house of the complainant situate in Mohalla Islampura. The accused after his arrest applied for bail to the lllaqa Magistrate Mohammad Arshad Virk. His application was dismissed on 17-11-1983 by the Magistrate who observed that the injuries caused by him were on the vital part of the body. Those had been inflicted by dagger. One of z tfem was declared grievous. The victim at that time was in a precarious condition. The accused then moved the Sessions Judge. Additional Sessions Judge, Gujranwala, dealt with his bail application and dismissed the same on 11-12-1983. Thereafter for the second time an application was moved by the accused before the same Magistrate for bail. Ground taken was that the accused's real sister was to be married on 6-1-1984 and he being elder brother was to make necessary arrangements. The proof produced in support of this was an invitation card. The same Magistrate bailed out the accused. The complainant then moved for cancellation of the bail, to the Magistrate. The application for cancellation was dismissed on 28-3-84. While dismissing the application the Magistrate observed "I agree with the contentions advanced by the learned counsel for the accused and have no hestitation in holding that the complainant has failed to make out a case for cancellation of bail already granted to the accused". Thereafter the complainant approached the learned Sessions Judge. The application was marked to the Additional Sessions Judge, Gujranwala who by order dated 16-5-84 allowed the application and cancelled the bail. The accused was arrested and sent to jail. He has now come to this Court for bail. Notice was issued on 26-5-84. Oo 17-6-84 1 ordered Mohammad Arsbad Virk, Magistrate, Gujranwala who dealt with the bail petition of the petitioner to appear personally before me. Learned counsel for the petitioner pressed for bail on the ground that number of adjournments were granted to the prosecution to produce evidence. He drew my attention to the dates mentioned in this petition, and submitted that inspite of that prosecution failed to lead any evidence. Learned counsel submitted that the prosecution cannot be given an open cheque. Reasonable opportunity was granted but the prosecution did not avail of that. Hence the petitioner is entitled to bail. It was further submitted that the investigation is complete; chalian has been submitted, therefore, it will be unfair to keep the petitioner behind the bars. With regard to the injuries, learned counsel submitted that only one injury was found to be grievous. have also heard learned counsel for the State. I am not inclined to consider anyone of these submissions. The most important point in this case is the conduct of the Magistrate and the way the petitioner manoeuvred his bail. Learned counsel did not address me on that. The reason being that he had no effective argument to A advance, The bail having been refused once by the Additional Sessions Judge as well as by the Magistrate himself, then the Magistrate had no right to entertain the second application ; that too on a flimsy ground of marriage of the petitioner's sister. If at all the Magistrate was honest in his approach he should have, at the most, allowed interim bail. But II would like to emphasize that even this would have been improper on his] part. The Magistrate was debarred for all intents and purposes to enter-| tain the second application for bail. 1 have gone through the order dated 28-3-84 whereby the application! moved by the complainant for cancellation of bail was dismissed. TheL Magistrate took special pains not only to justify his order of bail but also! went out of the way to dismiss the application. This is highly illegal andj improper. It reflects upon the integrity of the Magistrate. A few cases have come to my notice where once the application for bail is dismissed by a Magistrate as well as by the Sessions Judge, the accused after waiting for some time again approaches ',he same Magistrate 1 through back door and manages his release on bail. This-dealing must be! stopped. The officer who is found indulging in such a practice would be in serious trouble. His entire judicial career is likely to be ruined byl sndulgmg m such malpractice. I wanted to proceed against the Magistrate undsr Section 3 of the Contempt of Courts Act but he has been ordered to be transferred immedately by the Hon'able Chief Justice to Muzaffargarh. This should be eye opener for all. May be next time it would be more than mere transfer I have, therefore, decided not to take any further action. A copy of this order bhall be sent to the Registrar of this Court who shall brng'it to the notice of the Reporting Officer of the Magistrate at the time of writing his A. C. R. (TQM) Order accordingly.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 407(FB) Present : GUL MUHAMMAD KHAN , MUHAMMAD RAFIQ TARRAR & EJAZ N1SAR, JJ ZULFIQAR ALI—Petitioner Versus THE STATE—Respondent Criminal Misc. No. 1024-M of 1982 (In Cr. App. No. 99 of 1976), decided on 8-8-1984- (i) Criminal Procedure Code (V of 1898)—

S. 382-B—Period of detention—Duty of court to take into con­ sideration—Duty cast on court to take into consideration period of detention while passing order of sentence of imprisonment for offence in question—Held : Omission on part of court to amount to failure to exercise power or to perform duty in accordance with law for whi:h accused not to suffer, [P. 431]AC (ii) Criminal Procedure Code (V of 1898)—

S. 382-B—Pcilo.i of detention—Consideration of while passing sentence—Co"r i—Duty of- Held : Grant of relief being judicial duty of court, jauie to be performed after due application of mind to facts and circumstances of each case—Held further: Benefit not to be granted automatically and not only to differ from case to case but also to be delved in given situation. [P. 4311.4/Y (iii) Criminal Procedure Code (V of 1898) — ——S. 382-B—Period of detention—Consideration of while passing judgment —Held : Result of adjudicative process must be reflected in sentence of imprisonment announced in each case and exercise of it not to be left to jail authorities. [P. 431 \AJ (iv) Criminal Procedure Code (V of 1898)—

S. 382-B—Period of detention—Denial of relief for—Relief under section 382-B denied merely for reason of no request having been made in this behalf to consider provision of law or because of court having not been reminded of its power—Held : Accused not to be placed in disadvantageous position by denying him relief just for reason of same having not been urged on his behalf. [P. 431]/4£ (v) Criminal Procedure Code (V of 1898)—

S. 382-B—Relief under—Denial of—Held : Relief under S. 382-B not to be denied to prisoner for reason of his having not urged same before court at hearing or before announcement of sentence. [P. 431]AM (vi) Criminal Procedure Code (V of 1898)—

S. 382-B—Period of detention—Taking into consideration of while passing sentence of imprisonment—Court—Duty of—Held : Court itself to pass clear order of sentence of imprisonment after taking various factors into consideration and then to leave computation of undergone sentence and remissions to jail authorities. [P. 417]/4 (vii) Criminal Procedure Code (V of 1898)—

S. 382-B -- Period of detention — Decision regarding — Held : Judicial powers having been conferred under S. 382-B, adjudication of court to be reflected in final sentence of imprisonment to be announced--Held further : Grant of benefit being not automatic, same not to be left to jail authorities to determine. [P. 417JB PLJ 1980 SC 487 : PLJ 1981 SC 418 : 1981 SCMR 219 ; 1982 SCMR 709 : 1983 SCMR 1 13, 219 & 243 & PLJ 1984 SC 190 ref. (viii) Criminal Procedure Code (V of 1898)— —S. 382— Period of detention — Taking into consideration of — Exercise of powers of—Held : Power under S. 382-B being exercisable by court while passing order of sentence, announcement of specific term of sentence to follow and be based on that mental process—Trial court omitting to apply section when passing order of sentence—Held : Power under S. 382-B to he competently exer­ cised by appellate court. [P, 4171C & D PLJ 1979 Cr, C. (Uh,; lb-4 & PLJ 1984 Cr. C. (Lab.) 438 rDBj, ref. (ix) Criminal Procedure Code (V of 1898)-

S. 382-B—Period of detention—Consideration of— Court — Duty of—Held : Court being under obligation to consider factors men­ tioned in S. 382-B while passing sentence, inadvertance or omission of Court to consider provision not to place prisoner in disadvantage­ ous or losing position, [P. 424]/V (x) Criminal Procedure Code (V of 1898) —

S. 382-B—Period of detention—Consideration of while awarding sentence—Trial delayed because of delatory tactics of prosecution and not due to any fault of accused—Held : S. 382-B io give no benefit h case of sentence of death, forfeiture of property, fine or whipping—Held further: General benefit to every type of prisoner having not been intended, section 382-B to be applied only to cases of imprisonment other than life imprisonment, death, whipping. fine etc. r P. 4211R Cxi) Criminal Procedure Code (V of 1898)—

S. 3S2-B—Life imprisonment—Sentence of—Period of detention-­ Taking into consideration of—Held : Object of framers of law not appearing to be to grant benefit to every person accused of any sentence or in respect of every kind of punishment, benefit not to be permissible to sentence to death, forfeiture of property, whipping, fine etc.— Held further : Section 382-B not applying to cases of life imprisonment, permitting benefit of section to such cases also to be in violation of law. -P. 428]f <xii) Criminal Procedure Code < v of 1898)-

-S. 382-B—Period of detention—Consideration of while awarding sentence—Power—Exercise of—Trial court passing order of sentence on or after 23rd December 1975—Held : Trial Court to invariably exercise power under Section 382-B—Appellate or revisional court intending to interfere with order of trial Court so as to upset either conviction or sentence and to pass fresh order in either of events- Held : Power under S. 382-B to be (competently) exercised by such Court. :P. 430jr fxiii) Criminal Procedure Code (V of 1898)—

S. 382-B—Period of detention—Consideration of while awarding sentence—H«ld : Date of commission of offence and its challan being not at all material, power under S. 382-B to be available to court on date when order of sentence to be passed — Order of sentence passed prior to 23rd December 1975—Held : Trial Court not to exercise power under S, 382-B—Held further : Appellate or tevisional Court, however, to be competent to interfere in case of its interference with conviction of sentence. [P 4301 W (z!t) Criminal Procedure Code (V of 1898)— ——S. 382-B—"Imprisonment"—Meaning of—Held : Word imprison­ ment as used in S. 382-B not to cover cases in which punish­ ment awarded be imprisonment for life. [P. 43]AK (xv) Criminal Procedure Code (V of 1898)—

-S. 382-B—Retrospective effect of—Held : S. 382-B to be applied retrospectively provided power thereunder be available to Court on relevant date when order of sentence of imprisonment to be passed by it in any capacity—Held further : Date of commission of offenct and its challan not at all to matter in case. [P. 431W, (xvi) Criminal Procedure Code (V of 1898)-

S. 382-B & 561-A—Period of detention—Omission to consider while passing sentence—High Court—Inherent powers of—Exercise of—Delay in applying—Condonation of—Petitioner applying for concession under S 382-B more than two years after decision of High Court— Held : There being so much confusion on interpretation of relevant provision of law, delay in applying for condonation to be condoned. (P. 43l]AN (xvii) Criminal Procedure Cede (V of 1898)—

Ss. 382-B & 561-A—Period of detention—Consideration of—High Court—Inherent powers of—Exercise of—Order of conviction and sentence though passed prior to 23rd December 1975, High Court interfering with same on any time after that date without appl> ing provisions of S. 382-B—Held : S. 382 B being procedural provision having retrospective application, High Court to have power under S. 561-A to alter or review its previous order. [Pp. 424 & 425]0 (xviil) Criminal Procedure Code (V of 1898)— -—Ss. 382-B & 561-A—Period of detention—Omission to take into consideration—Court omitting to take into consideration mandatory provisions of law—Held : High Court to (be competent to) remedy situation either in appeal or in revision or even under S. 561-A (in case of omission taking place in High Court itself). [P. 43}AD (xix) Criminal Procedure Code (V of 1898)— ' ——Ss. 382-B & 561-A—Period of detention—Failure to consider while passing sentence—High Court—Inherent powers of—Exercise of— Trial Court inadvertently omitting to take into consideration provisions of S. 382-B while passing order of sentence — Held : Wrong to be remedied and omission to be supplied even by High Court to do real and substantial justice. [P. 425]Q (XX) Criminal Procedure Code (V of 1898)— —S. 369—Judgment—-Alteration of—Held : Section 369 having been placed in Chapter (XXVI of Code) meant for trial, proviston$ of th$ same to concern judgment delivered by Courts in their criminal original jurisdiction. [P. 418JE PU !973 Kar. 189 ; PLD 1952 Lah. 587 ; AIR 1923 Mad. 426; AIR 1919 Pat. 5i4 ; AIR 1955 SC 633 ; PLD i962 Kar. 282 ; PU 1974 Cr. C. (Kar.) 124 ; PLD 1958 SC 333 & PLJ 1977 SC 466 ref. (xxi) Criminal Procedure Code (V of 1898)—

Ss. 369 & 424—Judgment — Alteration of—Limitation on—High Court—Exclusion of—High Court deciding matter in its appellate capacity—Held : Principle underlying S. 369, Cr. P. C. to have no application to High Court because of its exclusion. [P. 420]# AIR 1946 Bom.. 276 (FB) : AIR 1933 Pat. 38 (DB) & AIR 1926 Sittd 275 ref. (xxii) Criminal Procedure Code (V of 1898)—

Ss. 369 <ft 424— High Court—Appellate of revisional jurisdiction of—Exercise of—Control of Hela : Neither S. 369 nor S. 424 to govern or control exercise by High Court of its appellate or revisional jurisdiction. [Pp. 421 & 424]/ & L PLD 1963 Kar. 313 & PLD 1970 SC 335 ref. (zxiii) Criminal Procedure Code (V of 1898)— —S. 561-A—High Court—Inherent powers of—Held ; High Court to have inherent power to alter, review or revoke its earlier decision unless there be statutory bar. [P. 420JG PLJ 1977 SC 466 rel. (xxiv) Criminal Procedure Code (V of 1898)—

S. 561-A—High Court—Inherent powers of— Exercise of—H«W : Provisions (of S. 561-A) to override other provisions of Code and to be competently applied to secure ends of justice and to prevent abuse of process of Court—Held further : High Court also to see that orders made under Code not lose their application or effect for any omission made. [P. 42l]K AIR 1959 All. 69 ; AIR 1927 Lah. 139 ; AIR 1939 Lah, 244 : AIR 1933 All. 49 ; PLD 1962 Lab. 161 ; 1972 P. Cr. L. J. 107 ; PLD 1970 SC 335 ; PLJ 1973 Kar. 189 ; 1975 P. Cr. L. J. 655 ; PLJ 1975 Cr. C. (Lah ) 173 : PLD 1961 Dae. 523 ; PLJ 1979 Cr. C. (Qta.) 342 ; AIR 1950 All. 625, AIR 1955 All. 742 ; AIR 1951 All. 441 ; AIR 1922 Mad. 329 ; AIR 1924 Mad. 640 ; AIR 1927 Cal. 702 ; AIR 1949 All. 176 ; AIR 1948 All 106 & AIR 1965 Mys. 224 ref. (ast) Criminal Procedure Code (V of 1898)— ——S. 561-A—High Court—Inherent powers of-rExercise of—Applica­ tion for—Held : Application under S. 5&1-A to be made within reasonable time of order made. [P. 431]AG (xx?i) Criminal Procedure Code (V of 1898)- --- Ss. 561-A, 382-B & 369— Period of detention—Omission to take into consideration — High Court— Inherent powers of— Exercise of— High Court already deciding case in its appellate or revisiona! jurisdiction— Held :' Prohibition contained in S. 369, Cr. P. C. not pertaining to High Court, application under S. 561-A. Cr. P. C. to be competently entertained and relief under S. 382-B granted by Court in case. [P. (xxvii) Criminal Procedure Code (V of 1898)— ---- Ss, 561-A & 430— High Court— Inherent powers of— Exercise ot— Held : Inherent powers of High Court to alter, review or vary its orders, to give eftect to orders made under Code, to prevent abuse of process of Court or to meet ends of justice not to be absolutely and unequivocally ousted even by S. 430, Cr. P. C.— Held further : Such power though exercisable in rare exceptional cases, High Court to recall or alter order in case of violation of any mandatory pro­ vision of law. [P. 424] A/ (xXTiil) Constitution of Pakistan, 1973- -- Art. 189— Supreme Court— Law laid down by— Binding value of—­ Held ; All Courts to be bound to follow law laid down by Supreme Court. rp 420]F (xxix) Pakistan Penal Code (.XLV of I860— ---- S. 57— imprisonment for life— Meaning of— Held : Imprisonment for life being category apart, same to have nothing to do with im­ prisonment for 25 years as such. [P. 4271$ (xxx) Court — ——Act of— Held : No one to be allowed to sutler for act or omission of Court. FP, 430]/4/f (xxxi) Court— -- Duty of— Held : It being duty oi coust to apply correct law, no one to claim finality to order or estoppel against other side in case of correct law not being applied. fP. 430]AB (1900) 2 QB 240 ; (1900) 2 QB 245 ; PLD 1965 SC 690 & 1972 SCMR 359 rel, (xxxii) Court — -- Duty of— Held : Courts not to encourage multiplicity of liti gation. [P. 4251P (xxxiii) Interpretation of Statutes - -- "May" & "shall"— Construction of— Enabling provision appar­ ently of directory nature— Held '. In certain cases where power be entrusted to certain person, it becomes his dutv to exercise it [P. 430]7 (1880) 5 App. Gas. 214 : (I960) I QB 142 : (1963) 2 QB 455 & Corpus Juris Secundum (Vol. L1X, pp. 1371-1074) ref. (xxxjy) Practice & Procedure—

Relief — Grant of — Law placing duty on Court to consider situation and grant relief—Held : Relief not to be devied fin such case). [P. 430JZ (xxxv) W«iy.r— -—Plea of—Held , Benefit for public promided in Act not 10 be waives in any case. [P. 430JY PLD 1964 SC 536 : (186?) LR 1 P. C, 520 & (1949) 2 All. B, R. 207 ref. Uxxvi) Waiver— ——Principle of—Applicability of in criminal cases—Law entitling accused to move court for particular relief—Held : Omission on part of accused in such case to deprive him of his right on basis of principle of waiver. [P. 42]K (1870L. R. 5C. P. 634 &(!890)L. R. 2 P & D 29 ref. Mr. Maqbool llahi Malik, Advocate for Appellant. Mr. Khalil Ramdey, A. A. G. with Mr. Altaf Muhammad Khan for State, Dates of hearing : 1424/25-4-1984. JUDGMENT Gu! Mohammad Khan, J.—The petitioner alongwith others was con­ victed and sentenced to death with a fine of Rs. 1000 - under sections 302/34 P. P. C. by the trial court. In appeal, a Division Bench of this Court altered his conviction to sections 304,34, Part I P. P. C. and sentenced him to 10 years' rigorous imprisonment, in addition to a fine of Rs 1000;-. The order of the High Court was passed on 10th February, 1977. The Court while passing the sentence of imprisonment on the relevant date, however, omitted to take into consideration, under section 382-B Cr. P. C., the period, if any, for which such accused was detained in custody during or before trial. The petitioner has now applied after about 5 years praying that as section 382-B Cr. P. C., was not con idered by this Court, at the time of passing the order of sentence, the benefit of the same be given to him. There are also a number of other connected petitions raising -the same or other questions arising out of section 382-B of the Code of Criminal Procedure. This order shall dispose them all. 2. Section 382-B Cr. P. C. reads as under : "382-B. Where a Court decides to pass a sentence of imprison' raent on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence," This provisiou attracted the attention of the Supreme Court in AH Sher v. State (PLJ 1980 S. C. 48/). The Court observed that although section 382-B was not attracted to the case in strict terms, for the reason that the court was not passing an original order of conviction and sentence, but merely restoring the judgment of the trial court, yet, the benefit contem­ plated by the section must clearly be available to the respondents, who had been in custody for several years under the orders of the court, after the appeal against their acquittal had been admitted to hearing by it. The precise direction was that the period of their detention shall be duly taken into account while computing the total period of imprisonment which the respondents had to undergo. In Sher Muhammad v. State (1981 S. C. M. R, 872) the Supreme Court accepted the request of the petitioner in the circumstances of the case and directed that the benefit of the periocj of jail custody undergone by him as an undertnal prisoner shall he granted. Relief under section 382-B Cr. P. C. was also allowed by the Supreme Court in Nihala v. State (1983 S. C. M. R. 219) after death sentence waa converted to life imprisonment. Similar was the case of Mahboob AH (PLJ 1984 S. C. 190), Nawab v. State (1983 S, C. M. R. 1U) and Mapzoor v. Home Secy (1983 S. C, M. R. 245). The point whether section 382-B was applicable or not in the circumstances of the case did not come up under direct discussion, 3. Again in Manzoor Ahmad v. State (PLJ 1981 SC 418) the Supreme Court dismissed the petition for special leave to appeal but in view of the compromise between the parties, observed that the relevant authorities may take into consideration the period spent in jail by the accused, as undertrial prisoner, from the date of his arrest uptil the date of announce ment of sentence of imprisonment for life, in the light of section 382-B Cr. P. C. The learned Judges in that case followed the case of AH Sher referred to above. The Supreme Court, however, refused any relief under section 382-B in Muhammad Aslam v State (1982 S. C. M. R. 709) to the petitioners as the severity of the attack they launched against their victims and the number of injuries inflicted did not entitle them, particularly when they had already been dealt with leniently, 4. It will be appreciated that in AH Sber's case the Supreme Court unequivocally observed that section 382-B would, in strict sense, apply only when the Court was passing an order of conviction and sentence. In the other cases the learned Judges did not interpret the operation, scope and extent of the provision but granted relief for the entire period of detention, as the circumstances of the particular cases attracted it. This conclusion is suppoited by the refusal of the Supreme Court to give any relief in the case of Muhammod Aslam referred to in para. 3 above. It is, therefore, clear that the orders of the Supreme Court were meant to do complete justice in the circumstances of those particular cases. They, therefore, fall under Article 187 and not Article 189 of the Constitution. This view is strengthened by the fact that none of the questions arising in the cases in hand have anywhere been considered by the Supreme Court and there is no direct discussion or answer there either. No guidance from the Supreme Court is, therefore, available uptil this stage about the operation, scope and extent of application of section 382-B. Cr. P. C. It has also not been decided if the High Court after deciding a case in appeal or revision, can entertain an application and alter or review its judgment in its inherent power under section 561-A or any other provision ol' lav, i.o as to consider and grant, if any, benefit due to a prisoner, and if so, is it to be ascertained by the court itself or it can be done by the jail authorities on a reference by this Court ? Recently, a Division Bench of this Court in Aii

'. State (1982 P. Cr. L. J. 682) has held that if a Court did not discuss section 382-B Cr. P. C. while awarding the sentence, it cannot be said that the exercised the discretion one way or the other and so a direction may issue to the jail authorities to give the benefit at the time of computation of their sentence of imprisonment'. The learned Judges there also did not consider if relief could be granted after it had already decided the appeal and whether it is the Court which is to decide and grant relief or the matter can be left to be decided by the jail authorities ? The effect of section 369 Cr. P. C., was also not determined. It was also not considered if the sentence of life imprisonment would come in the ambit of section 382-B Additionally, no order of sentence had been passed by the Hsgh Court in that case and question whether the Court could pass such an order in that situation, was also not considered. 5. It was then contended by the learned counsel that the scope and effect of section 382. B had been considered by this Court in the case of Fazal Haque v. State [PLJ 1983 Cr. C. (Lahore) 217] to hold that where a Court omitted to pass an order, the parties should not suffer and its inherent power under section 56 -A Cr. P. C., can be invoked to supply the omission. It was further held that an order, in such a situation, would not amount to an alteration in the judgment so as to attract the bar under section 396 Cr. P. C. It appears that the effect and scope of section 3b9 Cr. P, C., was not argued before the learned Judges and the views that this provision already received, from the higher Courts, were not presented. 6. An absolutely, opposite view has been taken by a Division Bench of this Court at Bahawalpur in Aslam Pervaiz v. State (Cr. M. 281 of 1982-BWP in Cr. A. 87 of 1980-BWP) holding that : (a) section 382-B Cr. P. C. is not a remedial provision but it only enables the Court, at the time of passing an order of sentence, on trial, appeal or revision, to take into consideration the period of custody of the accused before and during trial ; (b) the omission to do so at the relevant time, for any reason, does not entitle the prisoner to later apply to the Court to get its judgment altered or reviewed as the same is expressly prohibited by section 369, Cr. P. C. (c) the relief must be granted by the Court itself after taking into consideration the various factors as noted in para. 11. 8. This Court considered and also gave effect to section 382-B Cr. P. C., in Sultan Ahmad v. State [PLJ 1981 Cr. C. (Lahore) 424] by reducing the death sentence of Sultan to life imprisonment, with a direction that the period of detention already undergone by him, as an undertrial prisoner, be treated as a period of detention as a convict. Now reported as PLJ 1984 Cr. C. (Lah.) 438 (DB). 9. Another Division Bench of this Court in Mar Eliahi v. State [PLJ 1983 Cr. C. ( Lahore ) 19] also decided a number of similar petitions and expressed the views that :— (fl) though section 57, P. P. C. and rule 198 (b) of the Pakistan Prison Rules, 1977, were of no avail and the sentence of life imprison­ ment could not be equated to 25 years, yet benefit of section 382-B Cr. P, C. must be applied to all types of imprisonments, including life imprisonment to advance the object and purpose of law and to relieve a prisoner of rigours of unduly harsh pro­ longation of his incarceration ; (b) the benefit of the provision can be granted by merely directing the jail authorities to do so leaving the modalities to be worked out by them ; (c) section 382-B is retrospective in its application to matters pending trial, appeal or revision but where all those stages had been con­ cluded before 24th December. 1975, no relief can be given ; (rf) in other cases relief can be given by this Court under section 561-A, Cr. P. C., even if the appeal or revision stands already decided. 10. The learned Judges in the above case, referred to in para. 9 above, did not follow Saleh v. Superintendent Cenflal Prison [PLJ 1982 Cr. C. (Karachi) 1901 where the benefit of section 382-B was granted in a case in which both the trial and the appellate Courts had passed their sentences before 24th December, 1975, /'. e. the date when this section was first introduced with word 'may'. The views of the learned Judges of the Sind High Court may also be summarised here with advantage . (i) section 382-B is procedural in naiure as it relates to computation of period of sentence and shall, therefore, operate retrospec­ tively : (if) the Court is competent under section 561-A to consider a mis­cellaneous application and grant relief under section 382-B if the same was omitted from consideration before, as it would not involve alteration or modification of sentence ; (Hi) an order under section 382-B can be made only after application of mind as to whether benefit under it be given or not ? (/>•) the power under section 382-B can only be exercised by. a com­ petent authority after application of mind and not by the jail authorities. 11. To sum up the above discussion, it may be said that the Supreme Court has given no authoritative pronouncement, on the points mentioned above, as envisaged by Article 189 of the Constitution, so as to give binding guidance to this Court, As regards the decisions of this Court and the High Courts referred to above, generally there is no disagreement on the subject of the section. The consensus of opinion of all the Courts is that section 382-B recognises the fact that the state machinery, for reasons, is not in a position to dispense speedy justice and. therefore, the proceedings under Section 145 Cr. P. C. must yield to the said Civill litigation and could not be continued any longer. 13, For the foregoing reasons, the petition is accepted asd th.e proceedings referred to above are quasfcsd. (MGR) Proceedings quashed,

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 432 Present : MUHAMMAD ASLAM MIAN, J Mst. RANI—Petitioner Versus RIAZ AHMAD KHAN and 2 Others—Respondents Writ Petition No. 4019/82, decided on 22-2-1984. (i) Criminal Procedure Code (V of 1898)— —-S. 202—Complaint—Allegation in — Inquiry—Object of—Held : Scope and object of enquiry being only to extent of finding out existence or otherwise of prima facie case to proceed with, question of conviction taking place or not to be consideration affiliated with fulfledged trial and not with inquiry into complaint. [P. ]B AIR 1963 SC 1430 ; NLR 1982 Cr. C. 549 ; 6 Cr. L J (1907) 85 ; PLD 1966 Karachi 653 & 1969 P Cr. L J 692, ref, (ii) Criminal Procedure Code (V of 1898) —

S. 202 read with Provisional Constitution Order (CMLA's 1 of 1981)—Art. 9-Complaint—Failure to summon accused—Order of Challenge to—Both Courts below exercising their jurisdiction beycnd scope of S. 202 in not summoning respondent under S. 376, Pakistan Penal Code (XLV of I860)—Held : Considerations'prevailing with lower Courts being not akin to scope of S, 202, Criminal Procedure Code, writ petition to be accepted. (P. ]C PLJ 1982 FSC 72 ; PLJ 1983 Cr. C. (Lah.) 240 ; PLD 1963 Dae. 908; PLD 1963 Lah. 357 ; AIR 1963 SC 1430 ; NLR 1982 Cr. C. 549; 6 Cr. L J 85 ; PLD 1966 Karachi 653 & 1>69 P Cr. L J 692 ref. (Hi) Provisional Constitution Order (CMLA's 1 of 1981)—

Art. 9 read with Criminal Procedure Code (V of 1898)—S. 202— Writ jurisdiction—Exercise of—Laches—Plea of—Both Courts below acting on wrongful assumption of law going to very foundation of jurisdiction and very exercise of same—Trial Court also not pro­ ceeding with complaint beyond point of summoning of respondent- Held : Interference by High Court in writ petition filed even after more than 16 months of passing of impugned order not to be out of context. [P. 436]4 (iv) Criminal Procedure Code (V of 1898)--

S. 202—See : Provisional Constitution Order (CMLA's 1 of 1981)—Art. 9. (v) Provisional Constitution Order (CMLA's 1 of 1981)—

Art. 9—See : Criminal Procedure Code (V of 1898)—Art. 202. Rao Hamid Mukhtar, Advocate for Petitioner. Ch, Muhammad Asbraf & Mr. S. M. Javed, Advocates for Respondent No. 1. Nemo for Respondents 2 & 3. Dates of hearing : 14.6, 11 & 12.10 & 16-11-1983. JUDGMENT This writ petition has been brought from an order dated 20-5-1981 of Ch. Muhammad Aslam, Sessions Judge, Sahiwal whereby he dismissed a revision petition filed by the petitioner against an order dated 23-10-1980 of Rai Muhammad Amin, Magistrate Section 30, Sahiwal who while summoning the respondent Riaz Ahmad Khan on a complaint of the petitioner under Section 342, P. P. C., refused to summon him under Section 376, P. P. C. 2. The brief facts of this case are that ths petitioner's transfer application arising out of the complaint filed by her was pending with this Coun during which pendency the petitioner filed this writ petition. 3. The petitioner originally filed a complaint under Sections 376/342, P. P. C. against the respondent Riaz Ahmad Khan addressed to the Ilaqa Magistrate Dera Rahim District Sahiwal alleging that the petitioner had cast no informution to the police of Dera Rahim against one Sher and tb; other Dallu that they were keeping certain arms without any licence on which they felt offended and threatened the petitioner that they would abduct her young daughter as a retaliation to that. The petitioner address­ ed an application to respondent No. 1 Riaz Ahmad Khan five monthts ago complaining about the threat given to her by the above said persons. The respondent No. 1 accepted illegal gratification of Rs. 2,000 from Sher etc. but at the same time called the petitioner for inquiry as to her application. The respondent No. 1 took her to his house where no other family member of the respondent was present. She was confined in a room duly bolted. She was kept in confinement upto evening. By 7.00 O'clock respondent No. 1 committed rape upon her despite her entreaties. She raised, cries upon which that lady who had accompanied her to that place before, came by. She after coming out of the house of the respondent narrated ths incident to Ahmad and Shahadat, h?r co-villagers. After the incident she eported the matter to the Circle Inspector Noor Shah who by taking the side of the respondent deceitfully did not get the petitioner medically examined and lastead helped the respondent. The petitioner repeatedly made various applications to the Martial Law Authorities as a result of which a case was registered against the respondent and he was thereby suspended. The respondent got the investigation of the case transferred to an officer who was his friend. The petitioner as a reason for filing the complaint stated that she expected no fair play from the police. 4. The learned Magistrate examined the petitioner and also recorded the statements of two other witnesses produced by her. In his order dated 3-10-1980 he bserved that the police had registered a case under Sections 376/340 P. P. C. at the instance of the petitioner which was cancelled after investigation. The petitioner who had produced two witnesses had failed to produce Mst. Nooran who accompanied her to the quarter of the respondent S. H. O. The petitioner who was 35/40 years old did not get herself medically examined after the commission of the alleged offence, which could have served as a corroboratory item The statement of the petitioner was shorn of any corroboration in that behalf from any other witness. In the absence of a medical report and the independant evidence direct or circumstantial, there was no probability of proving the commis­ sion of the offence of Zina, as such, the accusation of rape stood unproved against the respondent. The respondent therefore, was exonerated from the accusation of rape. However, from the preliminary statements of the two witnesses a prima facie case under Section 342 P P. C. against respondent No. 1 appeared as made out. The learned Magistrate as a result of his finding summoned respondent No. 1 under Section 342, P. P. C. 5. Being aggrieved therefrom the petitioner filed a revision petition which came to be decided by the learned Sessions Judge, Sahiwal. The learned Sessions Judge after mentioning the fact that the complainant/ petitioner as alleged had told Ahmad and Shahadat about the incident observed :-- "The complainant had not herself medically examined. Accord­ ing to her statement, another women named Nuran stayed out-side the room in which she had been confined but she had not raised the alarm from inside. The statement of the complainant that rape was committed on her, fiuds no corroboration from any quarter and reasonable grounds do not exist to believe that the offence under Section 376 P. P. C. was committed by the accusedrespondent. There being direct and circumstantial evidence to the effect that the complainant had been confined in a room, reasonable grounds existed to believe that the accused-respondent committed the offence under Seccion 342 P. P. C. The learned Magistrate, therefore, rightly declined to summon the accusedrespondent for the offence under Section 376 P. P. C. There is no illegality in the impugned order which cannot be interfered in revision."' 6. In this writ petition the learned counsel for the petitioner has contended that both the Courts have misread the statements and have acted without lawful authority is not keeping in view the provisions of section 202 Cr. P, C. which provision requires a Court only to look into a ca»e with a limited aspect so as to see whether a prima facie case is made out or not, As to the absence of the medical examination it has been alleged within the complaint that she was deceitfully deprived of that item of evidence and she being an illiterate lady cannot be put under any blame in that behalf. The question in issue is that whether the petitioner is truthful as to her statement. Both the Courts have miserably failed to see that her subsequent conduct is quite corroboratory as to her allegations and in this behalf both the Courts have not weighed the statements of two witnesses from this angle. In a case of rape the subsequent conduct of the prosecutrix is always regarded as relevant and corroboratory. As to her failure to produce .\fst. Nooran, the learned Magistrate could very well ask the petitioner to produce her or could himself summon her. In support of the petition the learned counsel for the petitioner has relied upon Shiukat Masih v. The State (PLJ 1982 F.S.C. 72), it was a case of Zina-btl'jabr. While dismissing the appeal of the convict the learned Shariat Court opined in answer to the arguments raised for the convict that the evidence of penetration was missing in view of the absence of the report of the Chemical Examiner on the vaginal swabs and there was com­ plete lack cf corroboration of the evidence of Mst. Asmat Bibi prosecutrix. that in the circumstances of the case the evidence Amanat and Mahboob (to whom the lady narrated the incident immediately thereafter, provided sufficient corroboration if any corroboration of the statement of Mst. Asmat Bibi was to be considered legally as necessary. It was, however, not necessary that the evidence of penetration must bave been in the form of the chemical examination, the evidsiice of Mst. Asmat Bibi about the penetration was very clear and they had no reason «to disbelieve her on that score, 1. The learned counsel for respondent No. 1 has in reply maintained that the statement of the petitioner on the question of rape completely lacks corroboration. There is no medical evidence so as to prove ths rape as having been committed upon her. The petitioner has not pointed out any misreading of any portion of the statement on the part of both the Courts. The learned trial Magistrate has considered the statements thoroughly and tbe learned Sessions Judge himself as well while exercising the revisional jurisdiction has examined the entire record so as to come to his conclusion. The case is only, if at all, that of wrongful confinemeut according to the statements of the witnesses from which the rape cannot be presumed. A person cannot he charged of a heinous offence without any material. The police case had been rightly cancelled after investigation. The reapppintment of the evidence cannot be done within the exercise of the writ jurisdiction. The case has been thoroughly examined by the learned Sessions Judge who also eomes to this same conclusion as is reached by the learned Magistrate. Unless there is some direct evidence tbe accused/respondent cannot be charged of the offence of rape The statement of a prosecutrix in a rape case must have at least independent corroboration. The evidence of the prosecutrix cannot be accepted as its face value. There is complete absence of independent evidence to that effect. There existed an enmity between the petitioner and respondent No. 1 because the husband of the petitioner was challenged by the respon­ dent in a case under sections 307/325 P. P. C. The learned counsel bat relied in support thereof on Tariq alias Tahira v. Haji Allah Ditta only with reference to the intrinsic quality of the statements made before him at the inquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by the persons examined at the instance of the complainant. In Abdul H«mid and 2 others v. Abdul Aziz (N. L. R. 1982 Criminal 549) a learned Judge of this Court has observed that the purpose of an inquiry under section 202 Cr. P. C. is merely to see whether or not the process should be issued against the persons named in the complaint. It should not partake the character of a full dressed rehearsal for the trial. The Magistrate entrusted with the proceedings under Section 202 Cr. P. C. has no jurisdiction to weigh the evidence as if, he has to find out whether or not the prosecution has succeeded in proving the case. In Mustafa Rahimy v. Motilal Chondilal [6 Cr. L. J. (1907) 85] it has been observed that under Section 202 Cr. P. C. while dismssing a com­ plaint the reasons for the same should be based on inferences or facts arising from or disclosed by (1) the complaint (11) the examination of the complainant (III) the investigation, if any, made under the powers conferred by section 202 Cr. P. C. Anything outside it is extra-judicial and must be discarded. In Lt. Col. (Rtd.) G. M. Nizamuddin v. Irshad Hussain Khan and another (P. L. D. 1966 Karachi 653) it has been held that the power of a Magistrate under Section 202 Cr. P. C. are not designed to clothe him with power of such deep appreciation of evidence as is required at the time of the final judgment. In Abdul Majid v. M. D. Mansoor All and 14 others (1969 P. Cr. L. J. 692) it has been held that the inquiry under Section 202 Cr. P. C. is restricted only to the ascertainment of the truth or falsehood of the com­ plaint. The purpose of inquiry under Section 202 Cr. P. C. is only to see if the allegations in the complaint are true or false and whether in the circumstances process should be issued against the accused. An in­quiry or investigation in this section is designed to afford the Magistrate an opportunity by their of confirming or removing such hesitation as he may feel in respect of issuing process against the accused. 10. From the observations made in both the impugned judgments as set out in paragraph Nos. 4 and 5 of this judgment which need not to be repeated here, it is quite clear that both the Courts have exercised their jurisdiction beyond the scope of section 202 Cr. P. C. The considera­ tions which have prevailed with both of them for non-summoning res-' pondent No. 1 under Section 376 P.P.C. and rather in the language of the learned trial Magistrate exonerating the respondent from the offence under Section 376 Cr. P. C. cannot be regarded as akin to the scope of Section 202 Cr. P. C. though such considerations are open at the trial. The mian argument advanced by the learned counsel for the respondent can only be considered after the trial takes place. The writ petition is accordingly accepted. Both the impugned orders are declared as without' lawful authority and of no legal effect being nullity. The same are hereby set aside. The learned trial Magistrate is directed to re-consider the summoning of the respondent under Section 376 P.P.C. consistent with this judgment. In the circumstances of the case there is no order as to costs. (TQM) Petition accepted

PLJ 1984 Cr PLJ 1984 Cr. C. 438 (Lahore) [DB] [Bahanalpur Bench] Present : FA2L-1-MAHMOOD & MUHAMMAD SHARIF, JJ ASLAM PERVAIZ alias PERVAIZ-Petitidner versus THE STATE-Respondent Criminal Misc. No. 281-80/BWP, decided on 25-2-1984. (i) Criminal Procedure Code (V of 1898)- —S. 382-B—Period of detention—Taking into consideration of while passing sentence—Court—Duty of— Held : Section 382-B being no remedial provision like those for appeal, revision: or review, Court, while deciding to pass sentence of imprisonment on accused for offence, to take into consideration period spent in detention by accus­ ed for such offence—Held further ; Obligation though cast primarily on court passing original order of conviction and sentence, relief in terms of section also to be competently obtained from court of appeal or in revision through competently instituted proceedings on showing justification for same. [Pp. 443 & 444JX • PLJ 1980SC487ref. (li) Criminal Procedure Code (V of 1898)—

-S. 382-B—Period of detention — Failure to take into considera­ tion—Effect of—No reference to S. 382-B made by Court at time of passing of sentence by court — Court, however, treating accused leniently in not awarding him maximum sentence — Subsequently applicant claiming benefit of section 382-B by filing application before Court—Held : Belated plea in circumstances not to be entertained—Held further ; Matter having become transaction past and closed, Court not to permit laying foundation of somewhat undesir­ able practice of second round before same Court on basis of after­ thought. [P. 444]B (Hi) Criminal Procedure Code (V of 1898)—

S. 382-B-Period of detention — Taking into consideration of— Held : Benefit under S. 382-B being not extendable mechanically as matter of course, such plea ought to be raised and benefit claimed in each case. [P. 444]£> (iv) Criminal Procedure Code (V of 1898)- ' S. 382-B—Period of detention — Taking into consideration of— Court satisfied regarding delay in trial being not result of dilatory tactics of accused—Held : Period of custody in jail for offence to be treated as period already undergone or court to correipondingly award esser sentence of imprisonment. [P. 444]£ O) Criminal Procedure Code (V of 1898)— ——S 382-B—Period of detention—Taking into consideration of— Plea of—Raising of—Held : Provisions of S. 382-B not standing on footing of mandatory provisions affecting jurisdiction of court itself in category of incurable illegalities, plea on question ought to be raised and benefit claimed at proper stages during trial. 'Pp. 444 & 445]F (ri) Criminal Procedure Code (V of 1898)—

S 382-B—Period of custody—Failure to consider while passing judgment—Effect of—Division Bench of High Court while deciding appeal making no reference to provisions of S. 382-B—Application subsequently filed by applicant claiming benefit of such 382-B, fixed before another Division Bench of High Court — Held : Division Bench of High Court not to undertake exercise to review or alter judgment rendered in criminal appeal by another Division Bench. (P. 445]G 1971 SCMR618 rel. (Til) Criminal Procedure Code (V of 1898)-

S. 382—Period of detention — Taking into consideration of — Court—Duty of—Held : Scheme of S. 382-B though obliging Court deciding to pass sentence of imprisonment on accused to take into consideration period accused remained detained in custody for offence, Court invariably not to be bound to grant relief—Held farther : Matter to rest in judicial discretion of Court to be decided in peculiar facts and attending circumstances of case, inter alia, role played, severity of offence, otherwise lenient view taken by Court in light of sentence prescribed and conduct of accused during trial. T. 446V 1982 SCMR 709 re!. (viii) Criminal Procedure Code (V of 1898)—

S. 382-B-Period of detention—Taking into consideration of— Application for—Applicant neither raising plea of benefit under S. 382-B before Division Bench of High Court hearing appeal nor approaching Supreme Court by filing special leave to appeal— Held Discretion exercised by Division Bench hearing appeal not to be substituted by another Bench of High Court. fP. 446jA' (ix) Criminal Procedure Code (V of 1898)—

S. 382-B -"For such offence"—Meaning of expression of—Held : Expression "for such offence" to clearly refer to offence in respect of which sentence of imprisonment be passed. [P. 447]A. PLJ 1977 SC 374 rel (x) Criminal Procedure Code (V of 1898)— — —S. 382-B—Period of detention — Taking into consideration of— Plea of-Petitioner detained in custody for offence under S. 302/34 Pakistan Penal Code (XLV of 1860) convicted and sentenced to imprisonment for altogether different offence under S. 326 P. P. C.— Held : Benefit of S. 382-B not to be claimed stricto sen.w as matter of right. [P. 447JA/ (xl) Criminal Procedure Code (V of 1898)- —S. 382-B —Period of detention — Taking into consideration of— "Such offence" — Meaning of—Held: Word "such" occurring in last part of section not to be substituted with word any" as same to undoubtedly run counter to legislative intent and to materially change its true import and scope— Obiter dictum. [P. 447]JV (xii) Crimin«l Procedure Code (V of 1898)—

S. 382-B-Period of detention — Consideration of while passing judgment—Reasons for—Recording of — No requirement for re­ cording of reasons incorporated in b. 382-B — Held : Failure to record reasons in absence of statutory requirement not to bring about infirmity in judgment of High Court so as to make it without lawful authority. [P. 454]/4C (xiii) Criminal Procedure Code (V of 1898)-

S. 382-B—Benefit under — Extension of—Held : Benefit for period accused remained in custody to be extendable on Court's being judicially satisfied that delay (in disposal of case) not occasioned by acts of accused. [P. 455]AD (xiv) Criminal Procedure Code (V of 1898)—

S. 382-B — Construction of — Held : Section 382-B not to be construed to be designed to alter all pervading scheme of Criminal Procedure Code in matter of passing sentence of imprisonment granted on sound principles and backed by ages-old precedents and authority of superior Courts. ]P. 455]AE (xv) Criminal Procedure Code (V of 1898)—

Ss. 382-B & 382-C—Placement of—Ss. 382-B & 382-C governing situation at time of passing of sentence and not relating to execution of sentence, held, misplaced in Chapter XXVII of Code. [Pp. 453 & 454]^ (x»I) Criminal Procedure Code (V of 1898)-

Ss. 382-B & 369—Period of custody—Failure to take into consideration—Effect of—Application under S. 382-B submitted after High Court becoming functus officio on pronouncing and signing judgment —Held : There being clear bar standing in way of Court by virtue of S. 369, Cr. P. C. to alter or review judgment, application to be incompetent. [P. 446]ff (xvii) Criminal Procedure Code (V of 1898)—

Ss. 382-B & 369—Period of detention—Taking into consideration of—Applications for—High Court while deciding appeal making no reference to provisions of S. 382-B—Subsequently, applicant claiming benefit of section by filing application before Court: Held : Decision of question based on S. 382-B to amount to altering or reviewing judgment, and as such to be expressly prohibited under Code of Criminal Procedure.. [P. 449J5& T (xvili) Criminal Procedure Code (V of 1898)—

Ss. 369 & 382-B—High Court—Judgment of—Finality of—Held : There being no distinction between asking for re-opening of final judgment of High Court on basis of benefit of S. 382-B, Cr. P. C. or any other legal or factual grounds including those touching upon merits despite express statutory bars, selemnity and finality of such judgment not to be undermined on belated or ill-merited pleas of con­ victs—Held further: Jurisdiction of High Court in terras of S. 369, Cr. P. C. being confined to correcting clerical errors, alleged omis­ sion to consider or grant benefit under S. 382-B to have no semblance of such order. :P. 448JO & P (xix) Criminal Procedure Code (V of 1898)— ——Ss. 382-B & 561-A—Period of detention—Failure to consider—High Court—Inherent jurisdiction of—Exercise of—Held : Inherent juris­ diction of High Court not to be available to reconsider question of sentence passed by subordinate Court—Rule, held further to apply more vigorously where question of reconsideration of sentence awarded by High Court be concerned. [P. 450JK PLD 1963 SC 237 rel. (xx) Crimioil Procedure Code (V of 1898)-

Ss. 561-A & 382-B—High Court—Inherent jurisdiction of—Held : Inherent powers of High Court not to be available to bring about material change or to alter judgment of court in criminal appeal so as to interfere with term of imprisonment applicant be required to undergo under that appellate judgment. [P. 452J^ (xxi) Criminal Procedure Code (V of 1898)—

S. 561-A—High Court—Inherent powers of—Exercise of—Held : Exercise of inherent powers having been pre-conditioned by necessity to give effect to any order under Code in contradistinction to desire to give effect to any piovision under Code, provisions of S. 561-A not to be attracted to cases where exercise of power to entail overriding express prohibitions contained in Criminal Procedure Cede. [Pp. 449 & 450]t/ PLD 1963 SC 237 & PLD 1967 SC 317 rel. PLD 1958 SC 335 & AIR 1951 SC 217 ref. (xxii) Criminal Procedure Code (V of 1898)— — —S. 561-A—High Court—Inherent jurisdiction of—Exercise cf— Held : Inherent power of High Court not at all to be available to cross express bars contained in Criminal Procedure Code. [P. 45l]Jf (xxiii) High Court—

Recommendations by — Held : High Court to pass order and to issue directions or commands but not to take upon itself ro|e of recommendatory body. [P. 453JZ (xxiv) Judgment—

Judgment of Superior Court—Presumption regarding—Held : Every judgment of superior court to carry with it strong presumption of same being considered and solemn decision—Held further: Onus to be heavily on person wishing to dislodge such presumption. [P. 444]C (xxv) Jurisdiction— Absence of—Held : In case of want or absence of jurisdiction in Court, merits of case, grounds raided or result sought to be achieved by person approaching such Court for any relief to be immaterial. [P. 455]/4F (xxvi) Interpretation of Statutes—

Principle of— Held : Statutory provisions not to be construed in isolation and, if necessary, court to exanvne whole of statute in order to discover true intent of its makers. [P. 45A]AB (xxvii) Words & Phrases—

"Alter"- Meaning of. [P, 449]g Blacks Law Dictionary ref. (xxviii) Words & Phrases—

"Review"—Meaning of. |P. 449]/J Blacks Law Dictiouary ref. (xxix) Writ Jurisdiction- —Exercise of—High Court—Writ against—Held : High Court not to issue order in nature of writ to itself nor apolication for such writ to be maintainable to question validity of High Court's own judg­ ments—Constitution of Pakistan, 1973—Art. 199. [P. 452]F PLD 19/2 Lahore 809 followed (xxx) Constitution of Pakistan— Art. 199—See : Writ jurisdiction. Mr. A. R. Tayyab, Advocate for Petitioner. Sh Riaz Ahmad, Advocate General with Mr. Rashid Aziz, Additional Advocate General, Khan Riaz-ad Din Khan, Advocate & Mr. N. A-Bhatti Advocate for State. Dates of hearing : 26 & 28-4-1982. JUDGMENT Fazl-i-Mahmood, J. —This Criminal Miscellaneous Application has been filed on behalf of Aslam Pervaiz convict under Section 382-B of the Criminal Procedure Code simpliciter claiming the benefit of this provision on the plea that it was not granted to hiai v

y another Division Bench of this Court while pronouncing judgment in his appeal (Criminal Appeal No. 87 of 1980/BWP) and Murder Reference No. 3 of 1981/BWP on 22n4 February, 1982. 2. The brief facts are that applicant Aslam Pervaiz, alongwith two others, had been tried on charge of murdering Muhammad Akram and convicted and sentenced under Section 302/34, P. P. C. to suffer death penalty by learned Sessions Judge, Bahawalpur on 14-9-1980. He was also fined Rs. 2,000 and in default of it to undergo rigorous imprisonment for three months. He was further ordered to pay a sum of Rs. 2,000 as com­ pensation to the legal heirs of the deceased or in default to suffer further rigorous imprisonment. 3. The convicts filed Criminal Appeal No. 87 of 1980/BWP and the matter also came up before the Court for confirmation of death sentences by way of Murder Reference No. 3 of 19sl/BWP. Beth the matters were heard by another Division Bench of this Court. The judg­ ment was signed and pronounced on 22-2-1982, with the result that the appeal of co-accused Sher Muhammad and Muhammad Ilyas was accepted and they were acquitted. In so far as Aslam Pervaiz applicant is con­ cerned, it was accepted partly to the extent that his conviction under section 302, P. P. C. was altered to one under section 326, P. P. C and he was sentenced to undergo seven years' R. I. and fined Rs. 4,000. In default of payment of fine, he was to suffer further rigorous imprisonment for one year. The fine if realised, half of it was to be paid to the heirs of the deceased. His death sentence was not confirmed and Murder Reference was answered accordingly. 4. This Criminal Miscellaneous application under Section 382-B, Cr. P. C. was filed about five weeks after the judgment had been signed and pronounced by the Division Bench. The prayer made is that benefit of section 382 B, Cr. P. C. may kindly be granted to the petitioner and the period of his detention in custody during trial may be directed to be considered towards the sentence. The application is based on the following grounds : — "(a) That since section 382-B, Cr. P. C. invests the petitioner with a right to take the benefit of such period during which the petitioner had remained in custody and he claims the right to be granted. (b) That due to inadvertance the petitioner could not make a reference to the said section and for that reason no view was ex­ pressed about the same at the time of decision of the above said Cr. appeal of the petitioner on 21-22/2-1982. (c) That since no decision was taken on this point, according to period of detention during trial as sentence will not be the review of the previous judgment. (d) That it would be in the interest of justice if the recommendation is made to the Director of Prisons to instruct the Jail Authorities to keep this provision in view while calculating the sentence even though no observation about it is made in the judgment of any court". 5. The learned counsel appearing in support of this application seems to be labouring under a misconception regarding the scope andi import of section 382-B, Cr. P. C. We feel that section 362-B, Cr. P. C.l is not a remedial provision like those for an appeal, revision or review. This section of the Criminal Procedure Code only provides that where a Court decides to pass sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence. This obligation has been cast primarily upon the Court passing original order of conviction and sentence as held by the Supreme Court in AH Sher v. The State (PLJ 1980 SC 487). The relief in terms of this section can also be obtained from a Court of appeal or in revision through competently instituted proceedings on showing by the accused/convict that it is due and justified in the facts and circumstances of each case. 6. In ground (b) noticed above, there is a frank admission of inadver tence on the part of the applicant in failing to make a reference to section 382-B of the Criminal Procedure Code which in other words means not asking for the benefit under it and as a result of that omission, nonexpression of any views by this Court at the time of the decision of the criminal appeal on 22-2-1982. We have no means of finding out whether this omission on the part of the applicant's counsel was due to inadver­ tence or not. It seems to us to be the result of his satisfaction with the decision at that time, as can be inferred from the circumstance that the applicant has not challenged his conviction and sentence any further. In this case, the maximum punishment prescribed for the offence under Section 326 P. P. C. is imprisonment for life or sentence upto ten years which has not been awarded. The treatment of the accused with leniency is thus clearly reflected in the judgment though not specifically stated. In such a situa­ tion, a belated plea ought not to b: entertained and we refuse to lend ourselves for a game of hide and seek and permit laying foundations of a risomewhat undesirable practice of a second round bsfore the same Court pn the basis of an afterthought whan the matter has b;comi a transaction past and closed and the scheme of law also bars such a course. 7. It must be observed that every judgment of a superior Court carries \withitastrpngpresumptionofbeinga considered and solemn decision. C|The onus will lie heavily on a person who wishes to dislodge such prejsumption. The confessed failure of the applicant to raise the plea of {benefit of section 382-B, Cr. P. C. during the hearing of the criminal Appeal cannot by any plausible process of reasoning be construed to be a fault or failure of the Court. This plea ought to be raised and benefit claimed in each case. The benefit under Section 382-B., Cr. P. C. is not OJextendable mechanically or as a matter of course. A burden lies on an accused or convict to satisfy the Court that the delay in trial was not the result of his dilatory tactics, but occasioned solely on account of law's delays. This of necessity would require some sort of inquiry by the Court for its judicial satisfaction. It is only when the Court is satisfied that the jaccused/convict is in no manner to blame for the delay, that the Court would order that period of his custody in jail for the offence in respect of which the sentence of imprisonment is being passed be treated as period already undergone, or in view of such period the Court may corresponding­ ly award lesser sentence of imprisonment Adoption of either course is a mere matter of form without changing the substance. The provision under f consideration does not stand on the footing of those mandatory provisions which affect the jurisdiction of the Court itself in the category of incurable illegalities which bring about vitiative infirmities in the decision rendered by the Court. The plea on a question of this nature ought to be raised and benefit claimed by the accused or convict as the case may be, at pro-i per stages during the trial. If wrongly refused, then it can be got redress-j ed in appeal or revision on making out a proper case. The alleged! omission to take into consideration the period spent in custody by an accused for an offence in respect of which sentence of imprisonment is passed either because it was not specifically claimed at the proper stage or if claimed the Court did not grant it, would have no bearing on the validity of the judgment or conviction which verdict must precede the award of sentence. The quantum of sentence within the limits laid down by law is a matter essentially resting in the judicial discretion of the Court to be decided on the facts of each case after taking into consideration a variety of relevant factors and circumstances and the merits in the light of sound judicially pronounced principles including mitigating circumstances. In a case where a Court has awarded a sentence of imprisonment to an accused which runs beyond the maximum punishment prescribed by law for that offence the decision to that extent would be without jurisdiction or con­ versely if the law prescribes a fixed penalty or two alternate punishments or while prescribing the maximum sentence also lays down that it shall not be less than that provided for that offence then any infraction of the mandate of law will render the decision illegal and without jurisdiction to the extent of its being violative of statutory law. In the former category of cases, it is for the accused to seek redress from the Court which has the power to undo the wrong competently instituted proceedings and in the latter case it would be for the State or the complainant similarly to agitate the matter in the like manner. 8. Apart from the above features of this case, we must hold on the authority of the decision of the Supreme Court in re : Juan Sullivan v. The State (1971 S C M R 618) that this Division Bench of the Court cannot! undertake the exercise to review or alter the judgment rendered in criminal/ appeal by another Division Bench. In the precedent case, the appellant! had been convicted by a Special Judge. On appeal, a learned Judge of the High Court of West Pakistan, Karachi Bench, upheld the conviction of the appellant but reduced his sentence of imprisonment to the term already undergone. The fine was remitted, except to the extent of the elevenr hundred U. S. Dollars, which had been taken from his person. The appellant then approached the learned Supreme Court by way of special leave to appeal inter alia on the plea that the High Court gave him no relief when he applied for the remission of the sentence of fine on the ground that the authorities had released 1100 Dollars in favour of his wife for her passage money, when she came out of Jail, with the permission of the State Bank and the money was thus not available towards payment of the fine imposed on him He had no other resources on which he could draw for the payment of the fine. The High Court turned down this prayer on the ground that a judgment in a criminal case could not be reviewed in the face of the provisions of section 369 of the Criminal Pro­ cedure Code. Leave was granted in this case. The Supreme Court held that "the High Court were apparently right in holding that section 369 of the Criminal Procedure Code precluded them from reviewing the order." The Supreme Court in these circumstances reduced the fine of the appel­lant Juan Sullivan to a sum of Rs. 10Q or in default of payment to suffer one week's rigorous imprisonment. In the present case, the applicant if he felt aggrieved by non-grant of concession under Section 382-B of Cr. P. C.. ought to have approached the learned Supreme Court through a petition for special leave to appeal as was done in the precedent case noted above, to seek appropriate relief. The application under section 382-B Cr. P. C. which has been submitted, when this Court after pronouncing and signing the judgment in the criminal appeal had become functus officio is incompetent as there is a clear a bar standing in its way by virtue of section 369, Cr. P C. to alter or review the judgment even though to the extent of sentence of imprisonment or the period of sentence the convict shall actually have to undergo under the appellate judgment. 9. The scheme of section 382-B Cr. P. C. no doubt obliges the Court deciding to pass a sentence of imprisonment on an accused for an offence to take into consideration the period if any, during which such an accused was detained in custody for such offence but the Court is invariably not bound to grant this benefit. The matter would rest in the judicial discre­ tion of the Court to be decided in the peculiar facts and the attending circumstances of each case, inter alia, the role played, severity of the offence, otherwise lenient view taken by the Court in the light of sentence prescribed and c induct of the accused during trial. We find support for our views from the case of Muhammad Aslam etc. »'. The State (1982 SCMR709). In the precedent case, relief was prayed for from the Supreme Court under Section 382-B of the Criminal Procedure Code by the convicts who had been convicted and sentenced under Section 302, P. P. C. by the trial Court to impr'sonment for life in addition to fine and in default thereof to further undergo rigorous imprisonment. The High Court had dismissed their criminal appeal. The Supreme Court while rejecting the plea for the grant of benefit of section 382-B Cr. P. C. observed :— "It may be mentioned that the accused (petitioners in C. P. No. 85/81) filed a belated application that they should be given the benefit of section 382-B Cr. P. C. But considering the severity of the attack and the number of injuries caused by them to the deceased and the fact that they have already been dealt with leniently, we do not consider it a fit case for granting the relief prayed for by them". In the present case, the applicant cannot reasonably be heard to say, in view of the punishment prescribed for the offence, that he has not been treated with leniency by award of a sentence of seven years' R. I. We cannot review or revise the question of quantum of sentence inclusive of the grant or refusal of benefit of section 382-B Cr. P. C. without under­ taking a second exercise to examine the case on merits and proper sentence to be awarded. We do not think that adoption of this course is permis­sible under the prevailing scheme of the Criminal Procedure Code. We also find ourselves in no position to substitute our discretion for the dis­cretion exercised by the learned Division Bench which decided the appeal of the present applicant. The applicant is doubly to blame himself for the alleged omission on the part of the Divison Bench by admittedly not raising the plea and additionally in not following the normal legal course of approaching the Supreme Court by way of special leave to appeal which remedy, according to the learned counsel, the appellant has failed to avail. 10. In the facts and circumstances of the mattet under disposal, the provisions of section 382-B Cr. P. C., on proper interpretation, do not appear to be strictly applicable. By virtue of this section the Court when passing a sentence of imprisonment on an accused for an offence, is required to take into consideration the period during which that accused was detained in custody "for such offence". The expression "for suchi offence" clearly refers to the offence in respect of which sentence of im-jc, prisonment is being passed. We rely on the decision of the learned] Supreme Court in re : Abdul Aziz and another v. Muhammad Ibrahim (PLJ 1977 SC 374), wherein it has been authoritatively laid down as to how the word "such" should be construed. The Supreme Court ruled: "Considering its implication that it refers generally and naturally to its last antecedent the use of this word is with a definite pur­ pose, i.e. to identify the ownership of the building with that before mentioned in the introductory part of clause (/»')• In this connection we would also refer to the rule as to how the word 'such' should be construed as stated by Maxwell in his book on the Interpretation of Statutes, 12th Edition at page 30 ; "Where the word 'such' occurs in a section it must not be ignored, but must be read as referring back to the preceding provisions, even though this gives rise to a result which appears anomalous." The petitioner was detained in custody for the offence of murder under Section 302/34, P. P. C. but has been convicted and sentenced to imprison ment for an altogether different offence under Section 326, P. P. C. In M such a situation, prima facie, it appears extremely doubtful, under the existing state of law, if the applicant can claim the benefit of section 382-B, Cr. P. C. stricto senso as a matter of right. This may will be the reason for non-raising of the plea by the applicant and in turn the Court may have considered this provision not attracted to the peculiar facts and circumstances of the case. We find no warrant in law while interpreting! this section to substitute the word 'such' occurring in the last part of theP section with the word 'any' as this would undoubtedly run counter to the! expressed manifest legislative intent and materially change its true import and scope. The substitution if made would read : "the period, if any, during which such accused was detained in custody for any offence". We, however, wish to leave the question open for deeper and detailed consi-deration in a case properly coming up before us for decision. 11. We may also refer here advantageously to the decision of the Supreme Court in the case of Amiruddin v. The State and another (PLJ 1977 SC 466) and the following observations made in the report :— "According to section 369 of the Code no Court when it has signed its 'judgment', shall alter or review the same except to correct a clerical error. But strictly speaking an order allowing or cancelling bail does not amount to a judgment within the meanings of this section, In Gul/ar Hassan Shah v. Ghulam At pp. 375-76. At p. 469. Murtaza and 4 others (FLD 1970 SC 335) this Court has held that an order passed under section 498 of the Code is not a 'judgment' within the meanings of section 369 of the Code so as to operate as a bar against its alteration or review. In this connection the Court further observed that the general principle of finality of judgment no doubt attaches to the decisions or orders of the High Court passed in criminal cases. Nonetheless, in the opinion of the Court in rare and exceptional cases the High Court has in­herent power to revoke, review or alter its own earlier decisions in cases which were not governed by sections 369, 424 and 430, with a view to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. At the same time the Court further observed that it was not possible to enumerate the circumstances in which the inherent power can be invoked." On a careful appreciation of the ratio of the precedent case, we are strongly of the view that the application under disposal is not maintainable for the simple reason that the decision of the criminal appeal of the applicant is albeit a judgment of this Court. It is not one of those cases where it can be said that either the case was decided without hearing the order was without jurisdiction. The decision of this Court rendered in the criminal appeal of the applicant cannot reasonably be said to be not governed by any of the provisions specified by the learned Supreme Court i.e. sections 369, 424 or 430, Cr. P. C. It is far from us to deviate from or even attempt to find an escape from the binding dicta of the Supreme Court even with best of intentions. We must firmly repel the insinuation made to draw fine distinctions in the Supreme Court judgments which on deeper consi­ deration turn out to be more artificial than real. We are unable to appreciate the distinction between asking for re-opening of a final judgment of this Court in criminal appeal on the basis of benefit of section 382-B, r. P. C. or any other legal or factual grounds, including those touching upon the merits despite express statutory bars. We are not minded to undermine the solemnity and finality of the judgments of this Court on belated or ill-merited pleas of convicts. The rigours of the law cannot be relaxed to open flood gates. Where aad how would the Court draw the line in each case in those cases which are not exceptional and are not out­ side the pale of the prohibition laid down by the Supreme Court. Our jurisdiction in terms of section 369, Cr. P. C. is confined to correcting clerical errors. It cannot be urged with any degree of reasonableness that the alleged omission to consider or grant benefit under Section 382-B, Cr. P. C, can have even a remote semblance of such an error. 12. We would now like to address ourselves to the further question whether acceptance of the plea of the applicant by passing an order to give him the benefit in terms of section 382-B Cr. P. C. would amount to altering or reviewing of the judgment. We have in the earlier part of the judgment made it sufficiently clear that the grant or refusal of benefit under section 382-B, Cr. P. C. iuvolves examination of a variety of factors followed by a judicial finding as a result of an inquiry into factual aspects. It is not the form but the substance and the effect of an order passed by a Court which will provide a true test for decision of the question whether it amounts to altering or reviewing the judgment. This Court has already examined the scope of the words "alter or review" occurring in section 369, Cr. P. C. in a decision reported as Crown v. Habib Ullah (PLD 1952 Lahore 587). In the words of Kayani J., it was observed :— "(2) Alteration or Review.— These words do not appear to have been used in any special sense. An alteration means a change, whether in character or appearance, and a document would be altered if it is made different in some respect, whether that and is achieved by a mere insertion or by the substitution of some­ thing for something else. There would thus be an alteration of the judgment when an argument is added even in support of the existing arguments. The judgment would, therefore, be altered if certain words are inserted in it, whether they do or do not alter the sense. An alteration which changes the sense also, whether wholly or partially, will be covered by the term 'review'. Now since the inseration of the words in question will not alter the purport of the judgment, which is that a sentence of death has been passed, but only indicate the mode in which that purport is to be accomplished, it will not amount to a review of the judg­ ment. There will nevertheless be an alteration." We may further refer to the judicially defined meanings of the world alter" as given in the Black's Law Dictionary (Third Edition)— '•To make a change in ; to modify ; to vary in some degree ; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected." We may also refer to the import of the word -'review" as given in the saidl Dictionary. It has been said to mean "To re-examine judicially. A re-j>e consideration ; second view or examination ; revision ; consideration for! purposes of correction." After examing the interpretation placed on the words "alter" or "review" as noticed above, we entertain no doubt that the exercise to be undertaken by us by judicially deciding the question ofi grant or refusal of benefit uuder section 382-B Cr. P. C., apart from theL other reasons already listed by us, would definitely amount to both altering! and reviewing the judgment in material respects. It will entail of necessity! an inquiry into factual questions and examination of the contentions of the convict and the State and then rendering a decision. It must be observed at this stage that the learned Advocate General, Punjab Sh. Riaz Ahmad assisted by Mr. Rashid Aziz Khan, Additional Advocate General and Mr. Riaz-ud-Din Ahmad Khan, Advocate who appeared for the State have strongly opposed the application. Therefore, by no stretch of imagination, it can reasonably be urged on behalf of the applicant that the decision of the question of relief prayed for would not amount to a second view or examination or consideration for the purpose of correction. We arel therefore perfectly clear in our mind that the decision of the questionlr based on section 382-B would amount to altering or reviewing the judgment! which is expressly prohibited under the Criminal Procedure Code. 13. In so far as the reliance on section 561-A Cr, P. C. is concerned,! it would suffice to observe that it is not available in those cases wherej,, exercise of this power would entail overriding the express prohibitions con-J tained in the Criminal Procedure Code, This power is available on thej olain reading of section 561-A to make such orders as may be necessary to give effect to any order under the Code. The phraseology by the Legis­ lature needs to be noted with care. The exercise of this power is pre­ conditioned, by necessity, to give effect to any order under this Code in contra-distinction to the desire to give effect to any r revision under the Code. There are no impediments shown in the way of giving effect to the order of the Division Bench in terme that it was made. There thus arises no occasion for falling back on the provisions of section 561-A Cr. P. C. The other two criteria of abuse of process of the Court or otherwise to secure the ends of justice do not stand attracted as these elements are conspicuous by their absence in the facts and circumstances of the instant case. We at this stage wish to rely on the decision of the Supreme Court in the case of Muhammad Samiullah Khan and another v. The State (PLD 1963 SC 237). The Full Court, speaking through Hamoodur Rahman, J. while examining the scope of section 561 -A and section 435 read with section 439, Cr. P. C., held— "The jurisdiction under Section 561-A of the Criminal Procedure Code, 1898 is of an extraordinary nature intended to be used only in ext?aordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilised where there is other express remedy provided by the Code of Criminal Procedure. In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even re-consider the question of sentence It is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under section 435 read with section 439 of the Code of Criminal Procedure to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. Such wide powers can only be exercised under section 439 of the said Code". (Underlining is by us) It is crystal clear from the above enunciation that the inherent jurisdiction of this Court is not available to reconsider the question of sentence passed by a subordinate Court. This rule will apply more vigorously where the question of reconsideration of sentence awarded by this Court is concerned. We may once again refer to the case of Juan Sullivan where the question involved was merely of remission of fine imposed and despite that it was held that the High Court was right in refusing to entertain an application for that relief in view of the bar contained in section 369, Cr. P. C. and indeed the Court would be alive to the concept of inherent powers of the High Court. The reasons earlier given would also fully apply while examin­ ing the question of inherent jurisdiction. We find further support from the decision of the Supreme Court in the case of Ghulam Muhammad v. Muhammal Khan (P.L.D. 1967 S.C. 317). In this precedent, it has been laid down that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent Here in italics. powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice. These powers are as much controlled by principles and precedents as are its express statutory powers. It has been further held that the inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to rederess grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. In our humble view, from the above enunciation of law by the Supreme Court it follows as a logical corollary that the inherent power of the High Court would not at all be available to cross express bar, contained in the Criminal Procedure Code. This Court, therefore, must lean in favour of preserving the finality of its judgments in criminal appeals. We have noticed a decision of Indian jurisdiction in re : Javardhan Reddy v. State of Hyderabad (A.I.R. 1951 S. C. 217) The Supreme " Court of India has observed that the principle of finality of judgments of a criminal Court of appellate jurisdiction finds place in every system of civilised law, and section 430 of the Code of Criminal Procedure gives expression to the recognition of this principle in the law of India. The position is no different in Pakistan where this section of the Code of Criminal Procedure is operative in similar form. 14. To conclude the question of availability of inherent powers of this Court under section 561-A Cr P. C., we wish to refer to the decision of the Supreme Court in re : Malik Firoz Khan Noon v. The State (P.L.B. 1958 S. C. 333) In the precedent case, the Supreme Court at page 353 of the judgment while examining the scope of the inherent powers of the High Court as recognised by section 561-A vis-a-vis section 369 of the Code of Criminal Procedure, held as under :— "On the contrary, the Code of Criminal Procedure contains a provision in section 369 which expressly provides that 'Save as otherwise provided by this Code or fay any other law for the time being in force or, in the case of a High Court established by Royal Charter by the Letters Patent of such High Court, no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error', and we have the authority of the Privy Council itself in Lai Jairam Das v. King Emperor (72 I A 120), that a High Court has no inherent jurisdiction under Section 561-A to alter its judgment which is prohibited by section 369 of the Code. The general principle that no Court can claim inherent jurisdiction to exercise powers expressly taken away by legislation has also been clearly stated by the Privy Council in Kumar Singh Chhahajar i>. King Emperor (73 I. A. 199). It seems to me to be perfectly clear, therefore, that by reason of section 369, Code of Criminal Procedure, a High Court has no inherent juris­ diction to amend its judgment by deleting passages from it." We may further refer to the observations made by Rahman I. at page 383 of tb« same report: The answer to the question posed, iu rny opinion, should be in the negative, in the face of the express provision contained in S. 369 of the Code of Criminal Procedure Code. The power in question could have been described as an inherent power of a Court of record but it will not be available when the legislature has enacted law in the contrary sense in the shape of S. 369, Criminal Procedure Code. The judgment of the learned single Judge in the instant case is as much a judgment of the High Court as w<,uld be the judgment of the appellate bench of that Court and both judgments would be subject to the limitations imposed by S. 369 of the Code in respect of alteration or review though the appellate judgment may possibly render the judgment appealed against ineffective. Only a clerical error can be corrected under that section and no substantive change in any part of the judgment would be permissible after it had been signed. This view has the support of the Privy Council judgments in Lala Jairam Das v. King Emperor (72 I. A. 120) and Kumar Singh Chhahajar v. King Emperor (73 I. A. 199) ................................. " (Underlining is ours) On a careful perusal of the above precedent case, we are clearly of the view that the ratio decidendi of this case is that the inherent powers of the High Court are not available to us to bring about a material change or alter Che judgment of this Court in a criminal appeal so as to interfere with the term of imprisonment that the applicant has to undergo under that appellate judgment. 15. Next, it still remains to consider the question wherher we can come to the aid of the applicant by treating this application under section 382-B Cr. P. C. to be one under our constitutional jurisdiction. IWe must observe that one of the well-recognized and known limitations on the power of the High Court acting in constitutional jurisdiction is that it Tcannot issue an order in the nature of writ to itself nor is an application for such writ maintainable to question the validity of the High Court's own judgments. We need not dilate on the nature of this jurisdiction and the conditions and qualifications for its exercise and the functionaries or authorities to whom it can be issued for the purpose of the present case. It appears sufficient to rely on a decision of this Court in re : Ramzan r. Ch. Muhammad Aslam, Magistrate 1st Class (P. L. D. 1972 Lahore 809). The Division Bench at page 835 laid down as under :— "29. The last question to be dealt with relates to the jurisdiction of this Court to review the orders passed by it under Section 491, Cr. P. C. After the dismissal of the petition filed by Naseer (paramour) under section 491, Cr. P. C. and the orders possedby this Court directing that the detenu br handed over to her father, it cannot be seriously questioned that the same subject cannot be re-opened in review under section 491, Cr. P. C., because in criminal matters, review of judments, or orders in the nature of judgments, is not permissible. This Court has no inherent jurisdiction (apart from Criminal Procedure Code) to review its orders. The situation, however, has slightly changed by Ramazan Htrc in italics. petitioner having moved the Court under Article 98 of the Constitution and also by the fact that the same case is now being heard by a special Division Bench. Factually speaking, the change is there and it cannot be denied. But the fact remains that the matter is before the samj Court. The High Court (although in a Single Bench) passed the earlier orders under section 491, Cr. P.C., and the (same) High Court is again being asked to re-open the matter in writ jurisdiction, before another Bench consisting of two Judges of the Court. In both the relevant provisions, the expression used is the High Court. Whether the High Court decides the matter in a Single Bench or a Division Bench, the question of Letters Patent Appeal being not relevant, the fact remains that the decision at both the stages is to be by the High Court. I am, therefore, of the view that this special Bench acting under Article 98 of the Constitution cannot override the provisions of the Criminal Procedure Code in so far as the question of review is concerned and cannot modify the order passed by the High Court on 204-1971, and reiterated on 26-4-1971 under section 491, Cr. P. C." We respectfully follow the earlier decision of Division Bench of this Court in the above noted p ecedent which proceeds on sound legal principles. 16. In so far as ground (d) taken by the applicant in the application inder disposal-is concerned, we consider it sufficient to observe that this Court has never taken upon itself the role of a recommendatory body. It passes orders, issues discretions or commands which, by Constitution and law, the concerned authorities are bound to obey and this Court has the power to enforce. The Director of Prisons was not even a party to the Criminal Appeal nor is he a party to this application. However, the posi­ tion would have been entirely different if in the course of competently instituted proceedings the question of the benefit of section 382-B Cr. P. C. was decided in favour of the accused and not a recommendation but a direction would issue obliging the Jail Authorities to treat the period during which the accused remained in custody as the period already under­ gone or to direct them to compute the same towards the total sentence which such accused would factually have to undergo. The order or judg­ ment of this Court would bind the State and the Jail Authorities being the functionaries of the State would be equally bound by it. We are rather surprised that the learned counsel appearing in support of this application in this very ground has sought a recommendation despite an admission to the effect—"even though no observation about it is made in the judgment of any Court". Th» plea lacks total merit and we have no hesitation in repelling it. 17. We may point out that section 382-B Cr. P. C. is placed in Chapter XXVII under the heading "Of execution". This placement, how­ ever, does not appear to have much bearing on or of help in construing this provision. It is so because we find that the next section 382-C also refers in point of time to the stage of passing of a sentence on an accused for any offence. The Court at that time may take into consideration the jlscandalous or false or frivolous plea taken in defence by accused or on his ^[behalf. None of the two sections relate to execution of sentence but govern the situation at the time of passing of sentences, of course, before! judgment is signed and pronounced. These two provisions appear to bej misplaced in this Chapter. j 18. We wish to examine the matter now rather in a somewhat different light. It is necessary to recapitulate the cardinal principle of interpretation of statutes that a statutory provisions ought not to be con-i strued in isolation and if necessary the Court must examine the whole ofH the statute in order to discover the true intent of its makers. While pro-| 8 ceeding in this manner, we must advert not only to the provisions of sec­ tion 382-B but also to the provisions of the third proviso to sub-section (1) of section 497 which was added by section 3 of the Code of Criminal Pro­ cedure (Second Amendment) Ordinance (71 of 1979). The same Ordinance had brought about the substitution of the word "may" by the word "shall" occurring in section 382-B. The third proviso to section 497 (1) reads :— "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other per­ son acting on his behalf, direct that any person shall be released on bail ". We may now take notice of the amendment introduced in section 426 of the Code of Criminal Procedure by insertion of sub-section (1-A) by the Law Reforms Ordinance, 1972. It reads :•— "(1-A) An Appellate Court shall, unless for reason to be recorded in writing it otherwise directs, order a convicted person to be re­ leased on bail who has been sentenced ....................... ". On a careful consideration of these three provisions, it emerges clear to us that all three of them are designed to deal with situations arising out of abnormal law's delays at different stages of criminal cases. Section 49? (1) would apply in the event when an accused is in custody for any offence for a continuous period specified therein and whose trial for that offence has not concluded within a given period in respect of the two categories covered by clauses (a) or (b), whereas section 382-B would stand attracted at the time of passing the sentence of imprisonment. Sub-section (1-A) of section 426 Cr. P C. comes into play during pendency of criminal appeal whose disposal is delayed. While examining the effect of these pro­ visions, we do not desire to travel into fields which are not relevant for adjudication of the limited question before us. However, we rely to some degree for a limited purpose on sub-section (1-A) of section 426 which pro­ vides that an appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to various terms of sentences specified therein and whose appeal could not be disposed of within the given time. Inj section 382-B und^r examination, no such requirement for reasons to bej recorded has been incorporated. Therefore, the failure to record reasons!! in the absence of a statutory requirement would not bring about an infirmi-j ty in the judgment of this Court so as to make it without lawful authority. We do not wish to be understood as saying that even on general principles the question of grant or refusal of this benefit should be without reasons. 19. Now reverting to the provisions of third proviso to section 497 (1) Cr. P. C. relating to grant of bail on account of delays in conclusion of trial beyond the statutory period, indeed a valuable right has been con­ ferred on an accused to be admitted to bail as of right and not in dis­ cretion except where the Court is of the opinion that the delay in trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf. In our humble view, section 382-B ought to be read together with section 497 to avoid anomalous results. We may illustrate that suppose in a case for grant of bail on account of delay in conclusion of the trial under the third proviso to section 497 (1) Cr. P. C. going up to the Supreme Court, it was found by the learned Court that the accused was not entitled to be released on bail on forming the opinion that the delay in the trial had been occasioned by an act or omission of such accused or any other person acting on his behalf. The same period during which the accused remained in custody pending the trial will again become relevant for consideration by virtue of section 382-B before the trial Court in the original trial proceedings or before the High Court in appeal or revision. It would be rather strange that despite having once been held after due application of mind and hearing the accused and the State that the delay in the trial was due to the conduct of the accused or any other person acting on his behalf, the trial Court would ignore these material circumstances while considering the plea of grant of the benefit for the same period spent in custody for the purpose of passing of sentence of imprisonment in respect of that offence or to order that such period be treated towards the sentence already undergone by the same accused. The scheme of the law analysed by us above, tends to lend further support to the views that we have expressed in the earlier parts of the judgment that benefit for the period an accused remained in custody is extendable on the Court being judicially satisfied that delay was not occasioned by the acts of the accused. There is little scope for disputing that all three eventualities visualised by the Code of Criminal Procedure are designed to grant relief to the accused and convicts resulting from in­ordinate law's delays. 20. However, it seems that the difference in phraseology in respect of section 382-B in comparison to the two other provisions mentioned above, is the result of consciousness of the Legislature of the fundamental scheme ol the Code of Criminal Procedure regarding award of sentences of im­ prisonment having been left to the judicial discretion of the Courts on consideration of a variety of factors within the limits laid down by the Penal Code or special Statutes providing for penalties for different offences. On no reasonable hypothesis, therefore, section 382-B can be construed to p be designed to alter the all pervading scheme of the Criminal Procedure Code in the matter of passing sentence of imprisonment which is grounded on sound principles and backed by ages old precedents and authority of the superior Courts Before concluding, we may also observe that where there is want or ^absence of jurisdiction in a Court, approached by a party for any relief, 4the merits of the case, grounds raised or the result sought to be achieved Hby a litigant are not material. We do not wish to multiply reasons, as enough has been said to bring home our considered opinion. 21. We are also disposing of together with this application another application being Criminal Miscellaneous No. 59-82'BWP in Criminal Appeal No. 491 of 1974 BWP decided by a Division Bench of this Court on 19-4-1976 The application for claiming relief in terms of section 382 B Cr. P. C. was filed before this Court on 19-1-1582 after a lapse of about ix years. Suffice to observe that in addition to the reasons already reecorded' the application is hopelessly belated and furthermore it relates to a period before the word "may" occurring in section 382-B was substituted by the word "shall" in the year 1979. The High Court while accepting the appeal and dealing with the connected murder reference had decided ot to award the convict the extreme penalty of death but altered it to imprisonment for life. The application is silent whether a plea was raised claiming the benefit under the state of law as it existed at that time. The application is devoid of merit and is incompetent and accordingly liable to be dismissed. 22. The net result is that both these application being Crl. Misc. - tu Nos. 281-82/BWP and 59-82/BWP are held to be incompetent nd ac- ^ cordingly dismissed. 23- We wish to record our appreciation for the valuable assistance rendered by Sheikh Riaz Ahmad Advocate General, Punjab assisted by Mr. Rashid Aziz Khan, Additional Advocate General, Mr. Riaz-ud-Din Ahmad Khan, Advocate, Bahawalpur , Mr. N. A, Bhatti, Advocate and Mr. A. R. Tayyab, Advocate, for the applicants. (TQM) Applications dismissed.

PLJ 1984 Cr PLJ 1984 Cr. C. 456 (Karachi) Present : Z. C. VALLIANI, J SHAHDAD— Appellant THE STATE Respondent Cr. Apr!. v\ 97 of I97y, decided on 6-2-1983. (i) Pakistan Penal Code (XLV of I860)— -- S. 302— Murder— offence of— Evidence, appreciation of—Benefit of doutb Ocular account rightly disbelieved by trial Court— Dying declaration not relied — Recovery not relied— Conviction and sentence of appellant set aside by giving him benefit of doubt. [Pp. 46 1 & 462 ]A, B, C & D (ii) Criminal Trial— -- Eye-witnesses— Statements of-— Discrepancies and contradictions in— Contention that discrepancies and contradictions in statement of eye-witnesses were due to lapse of time, held, to have no force. [P. 461]^ PLJ 1977 SC 412 held not applicable. (iii) Criminal Trial— —.—Recovery — Evidence of — Recovery mashirs not belonging to locality and related to complainant side— Provisions of section 103 Cr. P C. uolated for which Investigation Officer giving no cogent reasons—Empty recovered from vardat not sent immediately and «parately to Ballistic Expert—Held: No reliance to be placedon such recoveries, [Evidence Act (I of 1872)— Ss. 9 & 21]. [Pp. 461 &462]C PLJ W9 SC 369 : 1974 P Cr, L. L 37 & PLD 1968 Lah. 869 ref. (If) Dying Declaration—

Evidentiary value of—Enmity — Effect of— Deceased admittedly having enmity with appellant due to previous case against him— Magistrate recording dying declaration not obtaining fitness certifi­ cate from doctor—Relation of deceased also present at time of making of dying declaration—Held : No reliance to be placed on such dying declaration, [Evidence Act (I of 1872)—S. 32]. [P. 46T.S PLD 19"0 SC 13 , PLJ 1977 SC 481 ; 1979 P. Cr. L. J. 496 & PLD 19"S K.ar. "10 ref. Mr. Mohammad Hayat Jnnejo. Advocate for Appellant. Mr. N»zir Alam. Advocate for State. Date of beiriug : 1-2-1983. JUDGMENT Appellant abovenamed, being aggrieved by judgment dated 27th January. 19"9 of the learned 1st. Additional Sessions Judge, Sukkur, in sessions case No. 109975, whereby appellant has been convicted under section 302 P. P, C. and sentenced to transportation for life and a fine of Ri. 5,000 - or in default to suffer further R, I. for one year, has preferred the above appeal, on the following facts and grounds :— 2. The prosecution case as briefly disclosed in the FIR dated 4-1-1972 lodged at Mirpur Mathelo police station, by complainant Mst. Malookan, the mother of deceased Ghulam Nabi, is, that on the day of incident at morning time, she alongwith her son Ghulam Nabi were going to village Garhi Chakar for taking grass from Sardar Mohammad Khan Bozdar's land. When they reached near the tube well, appellant Shahdad having single barrel gun alongwith another person with empty handed came there and challenged Ghulam Nabi, that they will not spare him. Ghulam Nabi started running but Shahdad appellant fired two gun shots at him, who fell down. It is further alleged, that complainant's another son Ghulam Rasool with Saifal Bozdar were also coming behind them who reached there, whereupon the culprits ran away towards west. Ghulam Nabi, who had sustained injuries narrated the facts to them. It is alleged in the FIR, that about 4/5 years prior to this incident Shahdad had filed a case for un­ natural offence against deceased Ghulam Nabi in which he was convicted and due to that enmity Shahdad wanted to murder him. Injured Ghulam Nabi was then taken to the Hospital, while Mst. Malookan lodged her report on the basis of which, a case under section 307/34 P. P. C., was registered against the culprits. 3. The above report was taken down by A.S.I Ghulam Shabir P.W. tl at 3 40 P, M.. which report is Es. 7, According to Ghulam Shabir ia bis deposition Ex. 32, be was told that hospital injuredGhulam Nabi was al­ ready removed to hospital at Mirpur Muthelo. He went to the hospital and prepared inquest report vide memo Ex. 11. He also secured the shirt and loin cloth in the presence of mashir vide memo. Ex. 10, Ghulam Nabi injured at that time was conscious, so he wrote a letter to the Civil Judge & F.C.M. Mirpur Mathelo for recording his dying declaration. He has produced his letrer as Ex, 33. Mr. Abdul Haraeed Abro Civil Judge & F.C.M. came to the Hospital within IS minutes and he recorded the dying declaration of injured Ghulam Nabi which is Ex. 31. The injured was then removed to Civil Hospital Sukkur, for treatment. On the same evening, he recorded the statements of P. W. Saifal and Ghulam Rasool, the eye-witnesses. Since it had become dark, he did not go to the vardat, but early in the morning visited vardat, where he prepared mashirnama of the scene of occurrence in the presence of mashirs Abdullah and Gul Sher. He collected the blood-stained earth from the vardat and one empty cartridge -f-' which were sealed and made into parcel, vide mashirnama Ex. 22. He came back to the police station and received the medical certificate of the doctor of Mirpur Matbelo. He has further deposed, that he then received telephonic message from police station 'C' section Sukkur, about the death of injured Ghulam Nabi in Sukkur Civil Hospital. He then converted the offence from 307 P. P. C. to 302 P. P. C. He was further infermed by 'C section police station, that A.S.I, Muhammad Hyas (now dead) had already gone to Hospital and had prepared the inquest report of the dead body, which is Ex. 12 and the mashirnama of injuries of the dead body vide Ex. 13, both in the hand writing of A.S I. Muhammad Ilyas' with whose signature he was familiar. On 5-1-1972, Ghulam Shabir handed over the police papers to station house officer Manzoor AH Wagan for further investigation, while the investigation was with Manzoor Ali S-l.P., Ghulam Shabbir A.S.I, was directed on 10-1-1972. to arrange for the identification perade of Kariradad co-accused and produced him and the witnesses before bead muashi and Magistrate Ilird class. The identifica­ tion test memo, is Ex. 18. On 11-1-1972, he has got the statements of ^ witnesses recorded under section 164 Cr. P. C. by Civil Judge & F.C.M. Mirpur Mathelo, He identified the clothes of deceased Article 'A 1 , blood­ stained earth article 'B' and crime empty article 'C'. 4. The remaining investigation was conducted by S.I.P. Manzoor AH, who had taken over the investigation already conducted by Ghulam habbir and on 9-1 1972, he arrested appellant Sbahdad from his village in the presence of mashir Abdullah and Gul Sher, vide mashirnama of arrest Ex. 23. On the same day appellant Shahdad led the police party and the two mashirs to his house, where from he dug out and produced one single barrel gun, which he had hurried in a room. He secured the gun in the presence of the mashirs vide mashirnama Ex. 24. He also arrested appellant Karim Dad, vide mashirnama Ex. 28, and got his identi­ fication test. On 12-1-1972 he recorded the statement cf P. W. Khan Mohammad and Ghulam. He then sent the blood-stained earth to the Chemical Examiner und produced his report in court Ex. 29, which is in positive. After completing the investigation, he submitted two challans against the appellant. He also produced the report of Ballastic Expert • Ex 29 A, which shows that the crime empty found from the vardat wat fired from the single barrel gun recovered from th? house of appellant 4-A. The case had proceeded in the lower court and the evidence of eye-witnesses was recorded, when after the enforcement of law Reform Ordinance, the case was sent up to the court of sessions. 5. At the trial before the lower court, the prosecution in support of itj case had examined P. W. 1 Mst. Malookan, P. W. 2 Saiful P. W. 3 Rasool Bus, P W. 4 Dr. Khan Mohammad, P. W. 5 Jamaluddin Head Muashi P. W. 6 Fateh Mohammad Tapedar, P. W. 7, Gul Sher Mashir, P. W. g Ghulam Rasool eye-witness, P. W. 9 Manzoor Ali S.H.O. ,P.W. 10 Abdul Hameed Abro, Civil Judge & F.C.M. P. W. 11 A.S.I. Ghulam Shabbir. The court witnesses namely Iddan Ali Mangi, Reader of the court and Shahid Ali, Record keeper were examined to prove the loss of the lower court depositions and production of certified copies of deposition of Mit. Malookan and Saifal from the file of bail application. 5. The appellant Shahdad had denied the prosecution allegation and also the recovery of the gun from his house and pleaded innocence, Similarly appellant Karimdad also denied the prosecution story. Both the appellant and co-accused did not examine an, witness in their defence. The learned trial court taking into consideration the evidence adduced before it, while acquitting the co-accused Karimdad S/o Bacho, convicted the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above, appeal, on the ground mentioned in the memo, of appeal. 5. The learned advocate for the appellant in support of the above appeal submitted as under :— (a) That P. W. 1 Mst. Malookan, P. W. 2 Saiful, P. W. 8 Ghulam Rasool, the alleged eye-witnesses of the incident were disbelieved by the learned trial court, i?) That the dying declaration of the deceased cought to have been discarded by thi learned trial court, in view of character of the deceased, as brought on record through P 4 Ws. as well as on account of the fact, that before recording of the dying declara­ tion no certificate from the medical officer was obtained by the Magistrate. In addition to this the learned Magistrate has admitted, in his statement before the learned trial court, that a relation of the deceased was with the deceased at the time of recording of his dying declaration and as such it cannot be ruled out, that the said dying declaration was prompted by such re­ lation, specially in the face of admitted enmity between the parties. In support of these contentions the learned advocate for the appellant relied upon cases reported in PLD 1970 SC 13, PLJ 1977 SC 481, 1979 Pak Cr. L I 496 and PLD 1978 Kar. 710. (c) That lince the prosecution eye-witnesses were disbelieved by the learned trial court and rightly so, their statements regarding what they were told by the deceased ought not to have been taken into consideration by the learned trial court. In support of this contention the learned advocate for the appellant relied upon ease reported in PLD 1958 SC 242. (d) That the condition of the deceased according to the medical evi­ dence on record, was not fit and as such no reliance ought to have been placed on the dying declaration of the deceased. In support of this contention the learned advocate for the appellant relied upon case reported in PJLJ 1981 SC 302. (e) That the recoveries ought to have been discarded as P. W, Gul Sher was the son-in-law of the complainant and co-mashir Abdullah though not examined, was also related as both these mashirs were not the residents of the locality and admittedly they were staying four miles away from the place of recovery in view of the fact that the village in which the appellant resided consist of more than 100 houses and as such respectable independent mashirs of the locality could have been available, but the police made no attempt even to call them, In support of this con tention the learned advocate for the appellant relied upon cases reported in 1974 Pak. Cr. L. J. 37, and PLJ 1979 SC 369. (/) That the empty recovered from the vardat was not sent seperately to the Ballastic Expert, but admittedly said empty was sent together with the gun in question and as such no reliance can be placed on the Ballastic Experts report. In support of this contention the learned advocate for the appellant relied upon case reported in PLD 1968 Lab. 869. 9. The learned advocate appearing for the State on the other hand iubmitted, that he was fully supporting the impugned judgment and in addition to this the learned advocate for the State submitted as under : (a) That the learned trial court erroneously discarded evidence of three eye-witnesses, without realising that on account of the lapse of time discrepancies in their statements was not unusual in ordinary course of circumstances. In support of this contention the learned advocate for the State relied upon case reported in PLJ 1977 SC 412, (b) That the statement of P. W. Mst, Malookan, the mother of the deceased against whom no enmity is alleged is straight for­ ward and convincing and as such the same has been wrongly dis­ carded and could have formed the basis of the conviction of the appellant. (c) That the dying declaration of the deceased was recorded by the learned Magistrate, against whom no enmity is alleged and as such the same has been rightly acted upon by the learned trial court and the authorities cited by the learned advocate for the appellant are based on different facts and as such not at all applicable to this dying declaration. (d) That the recoveries made from the appellant has been fullysupported by P. W. 7 Gul Sher, and the mere fact that he is related to both the parties, by itself is no ground for discarding his statement, specially as the same has been fully corroborated by I. O. The case reported in PLD 1968 Lah. 869, cited by the learned advocate for the appellant is not at all applicable to the present case. (e) That there is nothing on record to show, that the deceased was of a bad character and furthermore the allege conviction of the deceased in certain cases is not proved, as no certified copies of the said judgments have been produced and as such the authorities cited by the learned advocate for the appellant in respect of the dying declaration are not at all applicable to the present case. 10. I have carefully considered the above submissions made by the learned advocates before me and have gone through the R & P of the learned trial court as well as the impugned judgment and the cases cited by the learned advocate before me. 11. I find from the impugned judgment from the learned trial court has duly appraised the statement of alleged three eye-witnesses and for cogent reasons discorded their statements. The contentions of the learned advocate for the State, that the statement of these three eye-witnesies were wrongly discarded by the learned trial court, as discrepencies and contra dictions in their statements, brought on record were due to lapse of time, in my opinion has no force at all. The case reported in PLJ 1977 SC 412 on which the learned advocate for the State has relied is not applicable to this case, as facts of the said case were quite different from the facts of present case, on the basis of which their statements have been discarded by the learned lower court. 12. I have carefully gone through the dye declaration of the deceased as well as cross-examination of P.W. 1 Malookan, in which she has admitted, that deceased was previous convict. Deceased in his said dye declaration has also admitted enmity with the appellant over previous case which was according to him motive of the incident. The learned Magistrate, before recording dye declaration did not obtain certificate of Doctor, about the fitness of the deceased to make such statement. In addition to this, at the time, when deceased is allege to have given dying-declaration, his relative was with him, according to learned Magistrate. I further find from 164 Cr. P. C. statement of P. W. Ghulam Rasool, which has been brought on record as Ex. 26, that in cross examination, this witness had stated, that he had accompanied deceased to hospital and remained with him till he died and during this time deceased did not regain consciousness in hospital. In view of all these facts on record, I find great force in the contention of the learned advocate for the appellant that no reliance can be placed on such dying declaration and cases cited by the learned advocate for the appellant In this connection are applicable to this dying declaration, in my opinion. in view of this, I see no force in the contentions of the learned advocate for the State, that learned trial court has rightly relied upon the said dying declaration, 13. I also find great force in the contention of the learned advocate for the appellant, that no reliance can be placed on alleged recovery of gun, as mashirs of said recovery were not the residents of the locality, on their own admission, besides being related to the complainant side. It is obvious, that mandatory provisions of section 103 Cr. P. C. were violated by I. O. for which he has given no cogent reasons and as such cited by th earned advocate for the appellant in this connection are fully applicable! to these recoveries and as such in my opinion no reliance can be placed onl such recoveries. In addition to this, it is admitted position, that emptyj recovered from vardat, was not sent immediately and separately to the Ballastic Expert and consequently case reported in PLD 1968 Lah. 869 relied upon by the learned advocate for the appellant is fully applicable to the said report. 0 ^ 14. In view of my above conclusions in respect of dying-declaration and recoveries, the very basis of the conviction of the appellant by impugn­ ed judgment disappears. 15. Therefore I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appel Jant, in above appeal. (Aq. By.) Appeal accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 462 Present : QURBAN SADIQ IKRAM, J ABDUL HAQ—Petitioner Versus MUHAMMAD HABIB and 6 Others—Respondents Cr. Rev. No. 113/84, decided on 12-7-1984. Criminal Procedure Code (V of 1898)—

Ss. 537, 435 & 439 read with Pakistan Penal Code (XLV of I860)—" Ss. 419. 420, 468 d 471/109 & Prevention of Corruption Act (II of 1947)—S. 5 (2)—Proceedings — Error or omission in—Effect of— Separate FIR—Separate challans—Separate trial—Disposal of with one judgment—Legal effect—Both cases arising out of one FIR— Such fact, held, not to justify one judgment in two separate and independent trials — Held further : Finding of trial judge that it would be just and convenient to take up both cases together for dis­ posal as evidence recorded in one case has also bearing upon other connected case to be illegal and against law and to result in grave miscarriage of justice—Acquittal in both cases being based not on legal evidence recorded in each case independently, illegality/ irregularity not to be curable under S. 537 Cr. P. C. [P. 4b4]A 1970 SCMR 256 & PLJ 1981 SC 521 rel. PLJ 1974 Cr. C. (Kar.) 503 ; 1980 P. Cr. L. J. 1062 ; AIR 1927 P. C. 28 ; AIR 1928 Lah. 34 AIR 1938 Lah. 249 ref. PLD 1966 SC 708 distinguished. Mr. Khalid Iqbai Kazi, Advocate for Petitioner. Mr. Masood Mirza, Advocate for Respondent. Mr. Habib Adsari, Advocate for State. Date of bearing : 12-7-1984. JUDGMENT This judgraentwill dispose of Crl. Revision No. 113 of 1984 and Crl. Revision No. 114 of 1984 as common question of law is involved in both these cases, 2. The facts of the case are that one Rehmat Khan had three sons named Shah Mohammad, Ali Mohammad and Hussan Bakhsh. Out of these, Shah Muhammad and Ali Mohammad had no issue while Hussain Bakhsh had a son named Din Mohammad. Abdul Haq present petitioner is a son of this Din Mohammad and grandson of Hussain Bakhsh. It is alleged that Ali Mohammad owned 34 kanals 1 marhs of land in village Cbak No. 33" G. B. Tehsil Gojra, Dirtrict Toba Tek Singh. He was residing with one Nabi Bakh»h and allegedly died on 13-6-77. It is stated that on 28-6-77, Mohammad Ashraf accused-respondent got the entire above mentioned land transferred in his favour through a registered sale deed and thereafter got recorded entry in the Union Council that Ali Mohammad had died on 4-7-77 instead of 13-6-77. Again on 3-1-78, Mohammad Ashraf gifted 34 kanals 7 marlas of land mentioned above in favour of his wife Mst. Nargis Begum with the assistance of his own brother Mohammad Latif. Abdul Haq complainant on coming to know of tbs fraud lodged F.I.R, No. 74 on 18-4-78 narrating the above facts and alleging therein that the accused got transferred the above land in favour of Muhammad Ashraf by fraud. As there were two transactions ; one dated 28-6-77 in favour of Muhammad Ashraf accused and the other dated 3-1-78 in favour of Mst. Nargis Begum, two separate challans were filed ;a Court which were registered as criminal cases No. 532/F and 536 F, both under sections 419/420/468/471/109 P. P. C. rea with section 5 (2) of the Prevention of Corruption Act. In the former challan, the prosecution examined 10 witnesses and in the latter challan, 15 witnesses were examined. In the former challan, there were three accused named Mohammad Ashraf, Habib and Ishaq Lambardar while in the latter challan, there were five accused namely, Mst. Nargis Begum, Mohammad Lat:f and the three mentioned above. The learned Special Judge Anti- Corruption who tried both the cases separately and recorded evidence in all these cases separately decided to dispose of both the matters by one judgment which is now impugned in this revision petition. The accused in both cases were acquitted. 3. It is contended by the learned counsel for the petitioner that there were two separate trials In one case, there were only three accused and in the second case there were five accused persons. In one case, 10 wit­ nesses were examined and in the second case, 15 witnesses were recorded. It is, therefore, relying on Noor #iahi v. The State (PLD 1966 SC 708), argued that the impugned judgment in both these cases are illegal and have been passed with material irregularity not curable under section 537 Cr. P. C. 4. The learned counsel for the accused respondents in both the petitions has controverted the above arguments of the learned counsel for the petitioner and has argued that no prejudice has been caused to the complainant by the impugned judgments because the matter is of civil nature and the evidence in both these cases was identical. It was further submitted by the learned counsel that no offence could be said to have been made out regarding the gift dated 3-1-78 by Mohammad Ashraf in favour of his own wife. It was, therefore, argued that the judgment be maiulained. The learned counsel for the State has supported the contentions of learned counsel for the accused-respondents. 5. I have considered the arguments of the learned counsel for the parties. The opening paragraph of the judgment dated 12-11-1983 reads as follows :•— "This judgment will also dispose of the connected case No. 536/F titled State v. Muhammad Habib and two others, as both of them arise out of the same FIR and relate to the same facts. It will, therefore, be just and convenient to take up both the cases together for disposal as the evidence recorded in one case has also bearing upon theorder connected case i.e. case No. 536/F." I have noted that in challan No. 532/F of 1981, there were three accused namely, Mohammad Ashraf, Habib and Ishaq Lambardar. In this case only 10 prosecution witnesses were examined. One witness was examined by the accused in defence and another witness was examined as C. W. In the second case No. 536/F of 1981, there were five accused namely, Mohammad Ashraf, Habib, Ishaq Lambardar, Mst. Nargis Begum and Mohammad Latif. In this case, the prosecution examined by 15 witnesses. No witness was produced in defence nor any Court witness was recorded in this case. These were two different challans and separate trials were held by the learned trial Judge but surprisingly he disposed of both these cases by one judgment. It is correct that both these cases arose out of one F.I.R. but that fact could not justify one judgment in two separate and independent trials. The finding of the learned Special Judge that it would be just and convenient to take up both these cases together for disposal as the evidence recorded in one case has also bearing upon the other connect­ ed case is illegal and clearly against law, and has resulted in grave mis­ carriage of justice. Thus, the acquittal in both the cases was not based on legal evidence recorded in each case independently. This vitiates the trial as this illegality/irregularity is not curable under section 537 Cr. P. C. In support of this view, reliance is placed on Wazid Mora! alias Wazid AH and 13 others v. The State and another (1970 SCMR 256) where it was held that "this can hardly be considered to be a satisfactory manner of disposing of a criminal appeal on facts. It is a well established rule that each criminal case has to be decided upon the basis of the evidence led in that case." In another case cited as Muhammad Gulzar v. Muhammad Ashraf and 3 others (PLJ 1981 SC 521) the trial Judge had decided the case on the basis of the testimony appearing in the cross case which was found to be not only entirely illegal but not permissible under law. It was held that the illegality thus committed by the learned trial Judge was not curable under section 537 Cr. P. C. and in the circumstances is was held that the judgment stood vitiated by the illegality. I respectfully rely on these two judgments of the Suprems Court of Pakistan. Reference may also be made to Muhammad Ashraf and 2 others v. The State (1980 P. Cr. L. J. 1062) ; A I.R. 1940 Lahore 466, Emperor v. Anandya S. Mahir andPahlwanv The State [P.L.J. 1974 Cr. C. (Kar.) 503] A.I.R. 1927 P C, 28, A.I.R. 1928 Lahore 34 and A.I.R. 1938 Lahore 249, <?. The case of .Noor Elahi relied upon by the learned counsel for the petitioner :s distinguishable from the facts of the present case. In Noor Elibi's case, three accused had been named as the murderers of one MuzaSar Paracba, The police however, prosecuted one Ch. fkram and Saaaras as the culprits after investigation and placed the accused men­ tioned in F.I.R. in column No. 2 of the cballan. Noor Elahi com­ plainant Sled a pri\ate complaint giving his own version of the incident as earlier set forth in the First Information Report. At the time of the com­ mencement of trial, a question arose as to how the complaint case and challan case were to be dealt with. The majority view in Noor Elahi's ca>e case to the conclusion that the complaint case should be tried earlier than the chailan case. Mr. Justice B. Z. Kaikaus dissented from this view and observed that a "the law is that every criminal procecding(and in fact every civil 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. If the Court takes into consideration evidence recorded in another case or a finding recorded therein the judg­ ment is vitiated". This was an observation made while dealing with tfoe provisions of section 33 Evidence Act, In this view of the matter, Noor Elahi's case is not applicable to the facts and circumstances of this ca$e, 7. In view of the above discussion, the acquittal of accused dated 12-11-83 in both the cases 532/F of 1981 and 536/F of 1981 are set aside. The revision petitions are accepted and the two cases are remanded back to the learned Sp:cial Judge, Anti-Corruption. Faisalabad Division with Headquarters at Sargodha for fresh decision. 5 The iearned counsel for petitioner Abdul Haq as well as the learned counsel for the accused-respondents have submitted that the parties should be given an opportunity to produce any further evidence if they so desire during the fresh trial. As a result of the above, the existing evidence will remain on record of the two separate cases. Any additional prosecution or defence evidence if so desired to be produced by the parties, will be recorded by the learned trial Judge who will dispose of the two cases independently according to law. (Aq, By.) Petition accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. ( Lahore ) 465 (D.B.) Present : MAZHAR-UL-HAQ & RUSTAM S. SIDHWA, JJ SHER DIL and Another—Appellants Versus THE STATE-Respondent Cr. Appl. No, 670 of 1981 & Murder Reference No. 205 of 1981, heard on 30-4-1984. (i) Pakistan Penal Code (XLV of I860)— — —S. 302—Murder, offence of — Evidence, appreciation of—Both parties inimical to each other and having strained relations- Motive not satisfactorily proved—Recovery evidence rightly dis­ believed bv trial Court •— Ocular testimonv not relied -~ Conflict between ocular and medical evidence— Eye-witnesses closely related to deceased— No corroboration forthcoming in support of ocular testimony -Conviction and sentence of accused-appellants set aside by giving them benefit of doubt. [Pp .468, 469 & 4701-4, B, C, D, E & F (ji) Criminal Trial— __ Witness —Interested and closely related to deceased— Testimony of— Independent corroboration, requirement of— Held : In absence of independent corroboration of interested eye-witnesses, reliance on their testimony not to be safe. [P. 469 ]C (Hi) Motive— __ Evidence of — Proof of — Informant — Solitary statement of—­ Independent corroboration —Requirement of —Informant admittedly having strained relations with accused — Corroboration of his testimony with regard to motive being necessary, motive, held, not satisfactorily proved -[Evidence Act (I of 1872)— S. 8], [P. 468]4 Mian M. B. Zaman, Advocate for Appellants. Kh. Muhammad Asghar, Advocate for State. Kh. Sultan Ahmad, Advocate for Complainant. Dates of hearing : 29 & 30-4-1984. JUDGMENT Mazharul Haq, J .— Sber Dil (30) and his cousin Muhammad Ashraf (22/23) were tried for murder of Khan Zada by the Sessions Judge, Mianwali on 18-1-1981, they were convicted under Section 302/34 P. P. C. and sentenced to death. Each was fined Rs. 2.000/-, in default to undergo 2 years R. I. The fine if realised was ordered to be paid as compensation to the heirs of the deceased. The appeal and the connected murder reference are before me. 2. Sher Oil and Muhammad Ashraf accused beat up Khan Zada in village Thammewali, but a compromise was effected. Khan Zada went to Karachi for labour. Five/six months before the occurrence in this case, the two accused went to Karachi and were beaten by the deceased there. This was the motive for the crime in this case. According to the prosecution at 8.00 A.M. on »3-4-1980 Dost Muhammad (informant) and his father Bakhtawar were on their way to Chakrala, when they reached in front of Dhok Hakam Khan, village Thammewali and were at a distance of 25 to 30 Koreans from the truck of the deceased, which was parked there, they saw Sher Oil accused armed with a gun near the window of the truck and Muhammad Ashraf accused armed with pistol stood in front of the truck. Sher Dil abused the truck driver and opened fire. The second shot was fired by Muhammad Ashraf from the front. The informant and his father stood back. The accused fled away towards the south, the in­ formant and his father went near the truck, Mian Muhammad who had his wheat field nearby also reached there. The dead body laid on the «eat of th= truck with, a wouu4 oa the right side of the chest. The wind screen and the side window glass were broken. Covering a distance of about 8 miles P. W. 7 Dost Muhammad went to police station Chakrala, He made F.l.R. Ex. PF to P. W. 9 Saleem Raza, Sub-Inspector at 9.00 A.M. the same day. After registering the case, the S. I. went to the spot. He prepared the necessary documents and sent Khan Zada's dead body for its post mortem examination. He took into possession blood from inside the truck and broken pieces of glass lying on the mud­ guard vide Memo. Ex PB He also took into possession Truck No. 819-823 77-Karachi-78 through Memo. Ex. P. E. He found two glasses of the right side window broken. There were pellet marks on the right mudguard and the back rest of the truck seat. 3. P W. 4 Dr Ashiq Ali, Medical Officer, D.H.Q. Hospital, Mianwali, held the autopsy on 13-4-1980 and found the following injuries on the dead body of Khan Zada :— (1) A fire-arm wound of entry with inverted edges 3 c.m. x 3 c.m. on the vertabral column 22 c.m. below the root of nape of neck. No blackening or tattooing was seen. (2) An exit wound with everted edges 2c.m.xl c.m, on front of right chest 3 c.m. above the right of nipple and 8 c.m. to the right cf mid-line. (3) An exit wound with overted edges 2 c.m. x 1 c.ra. on front of right chest, 5 c.m. below right nipple and 6 c.m. to the right of mid-line. i.4) An abrasion ! c.m. x 1/4 c.m, on the right temple probably by fall and striking against sora« hard object. iOth and llth dorsal vertebrae and the spinal cord were fractured. Spinal Cord was smashed, llth rib was fractured from back. Right pleura and the lower lobes of right lung were perforated. Big vessels of the heart were perforated. Four pellets, gatta and namda were found in right chest cavity. The diaphrgram on its right side and upper part of right lobe of liver were perforated. There was about 8 ounces of semi digested food in the stomach and some digested food in the small intestines. There was faecal matter in the large intestines. • There was two ounces of urine in the bladder. la Doctor's opinion, the death occurred due to shock and haemorrhage caused by injury No. 1. 4, P. W. 9 Saleem Raza, S. I, arrested both accused on 14-4-1980. The following day Muhammad Ashraf got recovered pistol P. 5 and rifle P. 6 from the land of Malik Aslam which were dug out from under the earth near a tree. The weapons were made into separate sealed parcels vidt Memo. Ex. P. J. and P. K. respectively attested by the Investigating Officer, Dost Muhammad Constable No. 102 and Ahmad Kban Constable No. 540 (both constables not produced). On 16-4-1980 Sher Dil accused got recovered from within the wheat bundles gun P. 7 which was taken into possession vtde Memo. Ex. P. L. attested by the same aforesaid witnesses. After completing the investigation the accused were sent up for trial. 4. Both accused denied guilt and ascribed the case to enmity. Muhammad Ashraf claimed to have been roped io at the instance of Mali Muhammad Aslam, Chairman. No accused led evidence in defence. Relying on the motive story and the evidence of the eye-witnesses, trial Court considered the case satisfactorily proved against the accused. It, how­ ever, did not accept the evidence of the recoveries of the weapons. 5. Criticising the rinding, learned counsel for the appellants contended that it was a blind murder and out of enmity with the accused and rela­ tionship with the deceased, the two eye-witnesses have stage managed their presence at the spot. Since the recovery evidence has been rightly dis­ believed, therefore, there was no corroboratipn of the evidence of the interested eye-witnesses. Moreover, their testimony was also in conflict with the medical evidence ; as such, no reliance could be placed on it. On behalf of the State it was argued that the eye-witnesses had given a true account of the occurrence. They had not tried to exaggerate. Had they any motive to do so, they would have given the details of the injuries. Since they saw the occurrence from a distance of 25 to 30 Karams, their statements as such are true as to what they actually saw. 6. We have considered the submissions. The background of the earlier beating given to the deceased by the accused was for the first time elaborated by Dost Muhammad P. W. 7 at the trial. According to him, Sher Dil accused and the deceased, alongwith others injured Sher Muhammad and Hakam. A case was registered against them, but a com­ promise was effected and it was decided that the injured of that case be paid Rs. 1,500,'- as compensation. Since Khan Zada deceased had no money, Sher Dil accused paid Rs. 660,'- on his behalf. Later, the deceased refused to make the payment, therefore about 7/8 years before the occur­ rence in this case, Sher Dil and Ashraf gave him a beating. The deceased was a truck driver, he left for Karachi about 6 months before the occur­ rence. A month later, both accused went there and were beaten up by the deceased. It is note-worthy that the story of deceased's debt was not mentioned in the F.I.R. Moreover, besides the soitary statement of the informant, there is no corroboration of his testimony with regard to the motive. In view of the fact that since the informant had admitted his strained relations with the accused, therefore, corroboration of his testi­ mony with regard to the motive was necessary. We are of the view that Ithe motive has not been satisfactorily proved by the prosecution. 7. The recovery of the weapons was disbelieved because the trial Court found it highly improbable that the accused would bury the weapons just near the place of occurrence, Moreover, the Investigating Officer did aot join anyone from the general public to attest the recovery. Even the two constables who attested the recovery were not produced at the trial. Prosecution was . therefore, left with the solitary statement of the Investi­ gating Officer, whose investigation has been rightly criticised by the trial Court for the careless manner in which he was prepared the Inquest Report Ex. P. H. and for having recorded supplementary statement Ex. D.B. of the complainant which created a confusion about the place of occurrence. Under these circumstances, his solitary statement inspire no confidence at nil to prove the recovery of the weapons from the accused. 8. The ocular testimony is given by Dost Muhammad P, W. 7 and his father Bakhtawar P. W. 8. Admittedly, Khan Zada deceased was the first cousin of Bakhtawar. Under cross-examination, P, W. 7 Dost Muhammad admitted that 7,8 years ago his uncle Dilawar was injured by Sher Oil accused's father, for which Sher Oil's father and his brother Mehr Khan were chalianed. Mian Muhammad (given up eye­ witness) is admittedly related to the informant. Muhammad Nawaz. paternal aunt's son of Sher Oil accused, had fired at said Mian Muhammad but the shot hit a bullock and a case was registered under Section 3J7 P. P. C. When confronted with the facts of Section 3D7 P. P. C. case, Dost Muhammad showed ignorance about it. Obviously, he was trying to suppress the truth, because, being a Co-villager, he could not have been that ignorant about the criminal case. In this context, trial Court has also observed that by showing lack of knowledge, Dost Muhammod was trying to suppress the facts. In spite of the admitted enmity, trial Court chose to believe the eye-witnesses solely on the ground that they would falsely rope in the accused on a capital charge. Moreover, Bakhtawar was an aged and a respectable person, who stood the test of cross-exami­ nation. We are not inclined to accept this reasoning, because the in­ formant, who is a son of Bakhtawar, has admitted their strained relations ith the accused. The two eye-witnesses are also closely related to the c deceased. We are, therefore, of this view that in the absence of indepen­ dent corroboration of the interested eye-witnesses, it would not be safe to rely on their testimony. It is note-worthy that neither the motive story p has been satisfactorily proved nor the recoveries of the fire-arms ; as such, there is no corroboration forthcoming to support t he ocular testimony. 9. We now take up the conflict between the ocular testimony and the medical evidence. Both accused were said to have fired a shot each at the deceased. P. W. 7 Dost Muhammad that at the time of firing, Khan Zada (deceased) was sitting in the driver's seat. In the site plan the road is East-West. According to P.W. 2 Ghulam Hussain Patwari, the road was going in a depression. Its northern side was lO'll Feet high whereas the southern side of the road was about 6-} Feet high. The Inquest Report Ex. P.H. indicates that the truck was standing in North-South direction. This was nobody case. Undoubtedly, column 23 of the Inquest Report has been filled in recklessly. Whether the Investigating Officer was grossly negligent or had a motive to do so, is a matter which has to be looked into by his superiors as already directed by the learned Sessions Judge in his judgment. One fact, however, is clear/.?. ac:ording to the eye-witnesses, Muhammad Ashraf stood in front of the truck, while Sher Dil approached from the side of driver seat window. The shot fired by Muhammad Ashraf accused, being the second shot, hit the back seat, because in all probability the earlier shot fired by Sher Dill felled the deceased, therefore, it did not hit him. Under the circumstances, the sole question for consideration would be as to from what distance Sher Dil fired at the deceased and what was the deceased's posture at that time. As mentioned earlier, these details are not given by the eye-witnesses nor they were questioned about it. It may be mentioned here that the height of both sides of the road would not be material in this case. The heights of the road sides as given by the Patwari, when compared with the upward direction of the solitary injury of the deceased's clearly show—that the shot was not fired from the higher side of the road, because in that even­ tuality the pellets would have travelled downwards and not upwards as observed by the Doctor in the post-mortem report. Moreover, the Doctor also found no blackening or tattoing around it and there being one wound of entry and two of exit, indicate that the pellets went enmasse meaning thereby that the shot was fired from a distance of more than 3 Feet but less than 6 Feet. For thii conclusion we refer to '•Legal Aspects of Medical Practice" by Bernard Knight, Hnd Ed. page 137. In figure 19 at page 136 of the same book, characteristics of shot gun—wounds at varying ranges have been shown and explained. Had the shot been fired from a dis­ tance or more than six feet, then there would have been more entry wounds than one. It thus follows that Sher Dil tired standing close to the window of the driver's seat and in all probability at that time the deceased had attempted to make an exit from the other door in the opposite direction and in doing so he may have gone out and stood on the foot board when he was hit. It would not have been possible for him to stand up in the truck. If he had been hit while he was still in the driver's seat and had only turned his back towards the assailant to go out, in that case the direction of the wound would have been in a straight line and not upward. According to the site plan, the two witnesses are shown on the road beyond Muhammad Ashraf acccused, who had stood in front of the truck. As such, they would have noticed the movements of the deceased, but they have not said anything about it. This is not their case that the deceased had come out of the truck. According to them, he was fired at while he was sitting in the driver's seat. We are of the view that if the deceased was hit from the window and had just taken a turn, the direction of the wound would then not have been upward On this score also, we are not satisfied with the evidence of the eye witnesses. Moreover, both father and son were said to be ailing. Bakhtawar had gout trouble in his ankle. They claimed to be going all the way from their village to Chakrala on foot to see Maulvi Allah Yar. On the other hand, we find that the informant went to make a report on cycle He claimed to have stayed at the place of occurrence for about 10/15 minutes only and thereafter he went to make a report. How and from whom he got the cyci from the place of occurrence, is not explained by the prose­ cution, 10. From the foregoing analysis of the evidence, we are not satisfied with the prosecution case. Giving the benefit of doubt to the appellants, we accept their appeal, set aside their conviction and sentence and acquit them of the charge. They shall be released forthwith, if not required in any other case. (Aq. By.) Appeal accepted.

PLJ 1984 Cr PLJ 1984 Cr. C. (Karachi) 470 Present : Z. C. VALLIANI, J ABDUL HALEEM-Appellant versus THE STATE—Respondent Cr, Appl. No. 32 of 1981, decided on 6-2-1983. Pakistan Penal Code (XLV of I860)—

S. 302—Murder—Offence of—Evidence, appreciation of—Benefit of doubt—P, Ws. brother of deceased—Independent P, W. not supporting prosecution case rather indirectly supporting "alibi" of appellant and still not declared hostile— Mashirs of arrest of appel­ lant and seizure of incriminating weapons also not supporting pro-iecution case—Complainant admitting matrimonial dispute between appellant and complainant's side — A.S.I. concerned not examined — Handwriting expert not testifying handwriting and signature of A.S,1. concerned on various mashirnamas prepared by A.S I., including mashirnama of arrest of appellant and mashirnama of production of Pistol and hatchet—Appellant, by statement of D.W. corroborating statement of P W. regarding appellant being not present at time of incident—-Prosecution, held, failed to establish its case against appellant beyond reasonable doubt—Conviction and sentence of appellant in circumstances, set aside by giving him benefit of doubt. [Pp. 474 & 475]^ & B PLJ 1977 S. C. 28 held not applicable, Mr. Muhammad Hayat Junejo, Advocate for Appellant, Mr. G. R. Warsi, Advocate for State. Date of hearing : 30-1-1983. JUDGMENT Appellant abovenamed. being aggrieved by judgment dated I3st. January, 1981 of the learned Addl. Sessions Judge s Kandhkot, in Sessions case No. 485 75, whereby appellant has been convicted under Section 302 P. P C. and 13-D Arms Ordinance and sentenced to suffer Imprisonmem for life and to pay compensation of Rs. 3000/-or in default to suffer further R. I. for 6 months under Section 302 P. P. C. and has been sentenced to suffer R. I for one year under Section 13-D Arms Ordinance, both sentences to run concurrently, has perferred the above appeal, on the following facts and grounds: — 2. F. I. R. in this case was lodged by Rasoo! Bux son of Muhammad Hashitn Dangar, at Police Station Kashmore about 12 miles from Vardat on 5-8-1971 at 8 p. m According to the F. I R. Mst. Aisfaa sister of the complainant was married to the appellant about 4-5 years before her murder. After marriage he resided in his village near Shahdadkot district Larkana, alongwith his wife. About 20-25 days before the incident Abdul Haleem brought Mst, Aisha to the village of complainant, namely Ghulam Nabi Dangar for her delivery. 8-10 days before the incident, she had delivered a male child. At about breakfast time on the day of incident, the complainant his brother Atta Muhammad and appellant Abdul Haleem were in the house. Sister of the complainant was applying some medicineto the ulcers of her son Mohammad, due to which he was weeping. Abdul Haleem aboused the deceased and asked bet as to why she was causing his son weep. Mst. Aisha returned the abuse and asked him if the boy was not her son as well. She asked him if he was not a shamed of abusing her in presence of her brothers, Abdul Haieem lost temper. He bad a country made 12 bore pistol in the fold which he took out and fired at her which hit her and she fell to the ground. He then picked up an axe ordinarily used for cutting wood lying in the courtyard of the house and started giving injuries to Afst. Aisha She died on the spot The complainant and his brother Atta Mohammad tried to catch hold of him, but he ran away with the pistol and the hatchet. The complainant and Atta Mohammad closed the appellant for about a male, but could not catch him, thereafer Atta Mohammad advised the complainant to continue the search and himself re­ turned to see his sister. The complainant continued the search of appellant Abdul Haieem. On the way he met P. W Mohammad Moosa Danger, to whom he related the incident. Both of them searched for the appeilant up to Dakhan Station, but could not get him. The complainant and Mohammad Moosa therefore returned to their houses. Atta Mohammad then directed the complainant to go and lodged F. I. R. at Police Station, Kashmore. Accordingly he went to the Police Station and lodged F. I, R. 3. F. I. R. in this case was taken down by W, H. C, Sahibdine in presence of ASI Khurshid Hussain Shah at 8 p, m. and the AS! Signed it, as incharge of the Police Station. He has identified the signature of the ASI on (Ex.14), The ASI has not been examined in the court as he is an absconder in a martial law case. In this respect PC Hamzo Khan PS Kashmore has been examined as (Ex.16). He has also proved Mashirnama of Vardat (Ex. 8). inquest report (Ex.9). He has also proved Mashirnama of arrest of the appellant (Ex. 10), mashirnama of recovery of pistol, crime empty and an axe from the appellant (Ex. 11). He has further stated, that statement ofPWs Atta Mohammad and Mohd. Moosa were recorded by ASI Khurshid Hussain Shah on 6-8-1971. These statements also bear his signature. He has produced and proved F. I. R. under section 13-D of the Arms Act case (Ex. 26). It was taken down by him on 12-8-1971 from the dictation of ASI Khurshid Hussain Shah. This F. I. R. was registered at the Police Station in presence of appellant. The ASI had brought a country made pistol and crime empty to the police station in seperate sealed covers and had directed him to keep t^hem in the police malkhana and send the same to the Ballistic Expert for examina­ tion. He has produced the pistol as article C and crime empty in sealed cover as article D. The ASI had also delivered him the clothes of the deceased. 4. ASI Mohammad Aslam, who had done some of the investiga­ tion had retired from service and has left for Karachi without leaving address. He was untraceable for want of his address. In this respect PC Hamzo Khan (Ex. )6) has been examined. His evidence was there­ fore dispensed with. 5. In the end of trial the prosecution had produced two statement of ASI Khurshid Hussain Shah recorded during the committal proceedings as (30 and Ex. 31) under Section 33 of the Evidence Act. In the statement recorded ia the committal proceedings, in respect of the murder case the ASI deposed that on 5-8-1971 he was ASJI incharge police station Kashmore. On that day complainant Rasool Bux Sp,dged his F. I. R. at 8 p. m. He read it over to him and obtained his LTI thereon. On the same day he pro­ ceeded to the Vardat and posted guard over the deadbody of Afst. during eight. On 6-8-1971 he held inquest over the deadbody and drew report in presence of mashirs Qadir Bux and Jamaluddin. He also in­ spected Vardat by a memo. (Ex. 8). The Vardat was shown to him by complainant Rasool Bux. He secured blood stained Relhi from the Vardat by the same memo. He then called Medical Officer, Kashmore at the Vardat to conduct postmortem examintion. On the same day, he examined P. Ws. Atta Mohammad and Mohammad Moosa. He arrested the appel­ lant by a memo. (Ex. 10) By the same memo, he secoured blood-stained shirt and loin cloth of the appellant. After his arrest the appellant voluntarily led him and the mashirs to Gandher forest, from where he produced a 12 bore country made pistol and blood stained axe. One empty cartridge of 12 bore was secured from the chamber of the pistol. He secured both memo. (Ex. ll). On 7-8-1971 he got statements ofP. Ws. Atta Mohammad and Mohammad Moosa recorded before Mukhtiarkar and FCM Kashmore under section 164 Cr. P. C. Thereafter he banded over the case papers to SHO Fazal Mohammad Ruk, who challaned the appel­ lant to court of S, D. M. Kandhkot. 6. In his statement recorded during committal proceedings in respect of 13-D case the same ASI deposed, that during investigation of this crime he arrested appellant Abdul Haleem Dangar on 6-8-1971. The appellant voluntarily produced before him one pistol of 12 bore with an empty cartridge in its chamber on 12-8-1971. He also produced one blood-stained axe. These articles were produced from gandher forest. The same were lying under bushes. On demand the appellant could not produce licence for the pistol. He secured these articles by a memo, (Ex. I/) He brought the appellant to the police station and lodged F. I. R, under section 13-D of the Arms Act. He examined Jamaluddin and Kadk Bux on the same day and the handed over the case papers to SHO Mohammad Aslam, who challaned the appellant. The appellant had pleaded innocence and stated that he has been implicated due to enmity over matrimonial affair. We had examined Abdul Latif Panhwar in his defence. The learned trial court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenauied as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo, of appeal. 9. The learned adovcate for appeal submitted as under:— the appellant in support of the above (a) That the evidence produced by the prosecution before the learned trial court is not reliable and as such conviction of the appellant cannot be sustained. In support of this contention the learned advocate for the appellant relied upon case reported in 1983 S. C. M. R. p. 1. () That the appellant by examining the DW1 Abdul Latif proved his alibi and as such was entitled to benefit of doubt, but this aspect has not been properly considered by the learned trial court, who rejected the statement of DW1 without cogent reasons, (d) That PW4 Rasool Bux, PW5 Atta Mohammad are brothers of deceased against whom enmity is alleged, whereaes PW 6 Mohammad Moosa has not supported the prosecution case and similarly PW2 Kadir Bux has not only admitted enmity between the parties, but has also not supported the prosecution case and as such no reliance on the statement of the prosecution witnesses can be placed without independent corroboration s which is not at all available in the present case. (e) That the chemical examiners report is not definite and as such the allege recoveries cannot be used as a corroborative pieces of evidence. 10. In view of the above submissions the learned adovcate for the appellant submitted, that prosecution has failed to establish its case beyond reasonable doubt. 11. The learned advocate appearing for the State on the other hand submitted, that the fully supports the impuged judgment, as no question regarding allege enmity were put to the prosecution witnesses and conse­ quently their statements are straight forward and therefore the learned trial court was fully justified on relying on their statement. In support of thi« contention the learned advocate for State relied upon case reported in PLJ 1977 SC 28. 12. I have carefully considered the above submissions made by the learned advocate before me and have gone through the R & P of the learned trial court and impugned judgment as well as through the case cited by the Advocate, for the State. 13. It is admitted position, that PWs Rasool Bux and Ali Mohammad are the brothers of the deceased, whereas PW6 Mohammad Moosa is 'ndepsndent witness for purposes of corroboration, but he has not at all supported the prosecution case and has indirectly supported "Alibi'' of the appellant, but incite of this, he was not declared hostile by pro­ secution. PW 2 Kadir Bux was mashir of arrest of appellant and seizure of pistol produced by him. This witness categorically stated before the learned trial court, that pistol Article "C" was not the same, which was produced by the appellant. PW4 Rasool Bux in his cross examina­ tion has admitted matrimonial disputes between appellant and complainant's •side. It may be noted that PW2 Kadir Bux, mashir of the arrest and recoveries made from the appellant is maternal uncle of Rasool Bux (complainant) and PW Atta Mohammad and as such not independent mashir of the locality. It may further be noted, that PW 6 Shahibdion WPC of Police Station Kashmore, who was produced and examined to prove handwriting and signatures of ASI Khurshid Hussain Shah on various mashirnamas prepared by him, including mashtrnama of the arrest of appellant Ex. 10 and mashirnama of Production of pistol and hatchet by the appellant Ex. 11, in his cross-examination has stated hat these two mashirnamas Ex. 10 & 11 are not in the handwriting of (ASI Khurshid Hussain Shah. However ASI Khurshid Hussain Shah in statement recorded before the learned committal court, which was rought on record as Ex. 30 had stated, that both these mashirnamas hwere in his handwriting. It may further be noted, that appellant by he statement of DWl Abdul Latif has corroborated the statement of PW6 Mohammad Moosa, that appellant was not present at the time ofj the incident and as such PW Rasool Bus, who met him on the day ofl incident at Mirkot Railway Station told him that he was going to appellant! to inform him about murder of his wife. 14. Keeping in view all the above facts on record, in my opinion/ prosecution has failed to establish its case against the appellant beyondL reasonable doubt. The contention of the learned advocate for the Stater in view of above facts, has no force at all and case c';ed by him, is not| applicable to the facts of the present case at all. 15. Therefore I allow the a ove appeal and set aside convictionl of the appellant and sentences awarded to him and acquit him by giving! him benefit of doubt and direct that appellant be released forthwith if now required in any other case. (Aq. By.) Appeal allowed.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 475 [DB] [Rawalpindi Bench] Present : MAZHAR-UL-HAQ & AKHTAR HASSAN, JJ ABDUL MAJID-Appellant versus THE STATE—Respondent Cr. Appeal No. 83 of 1981, heard on 27-5-1984. (i) Pakistan Penal Code (XLV of I860)—

S. 302—Murder—Evidence, application of—Conviction—No pre­ vious enmity between parties—No motive—Dying declaration ruled out of consideration — Recovery evidence not satisfying— Ocular evidence believed—Conviction maintained. [Pp. 478, 479, & 480J5, C, & G (ii) Pakistan Penal Code (XLV of I860)— —S. 302—Murder—Sentence—Lesser sentence—Plea of—Deceased not directly concerned with earlier dispute arising between appellant and deceased's uncle—Immediate cause of attack by appellant, not known—Death sentence substituted for life imprisonment. [P. 480]<? (iii) Pakistan Penal Code (XL V of I860)— —S. 300, Except. IV—Sudden fight—Benefit of—Deceased unarmed —Motive not known—Appellant infliciting two knife blows—Held : Appellant acted in cruel and unusual manner—Benefit of sudden fight not extended, [P. 480]F (fv) Criminal Trial—

Affidavit Verification of—Defect ia—Evidentiary value — Each page of affidavit not signed by Oath Commissioner—P. W. denying having made affidavit before Oath Commissioner—Affidavit, rightly ruled out of consideration. [P. 478]^ (») Criminal Trial— —Evidence—Contradictions in— Held : In describing particular situation, every witness to have manner of his own. [P. 479]D (Vi) Criminal Trial- —Recovery — Evidence of — Recovery witness closely violated to deceased — Statement of — Contradiction in—2ffect of—Recovery Witness real uncle of deceased—Contradiction it his statement—No Witness of locality joined by Investigating officer—Recovery evi­ dence, held, not satisfactory [Criminal Procedure Code (V of 1898) S. 103]. [P. 479]C ivii) Criminal Triil- _—Witness, ttatement of—Recording of—Affidavit—Evidentiary value of—Statement of witness to be recorded during course of investi­ gation under provisions of S. 164 Cr. P. C. only — Fact may be yet proved by an affidavit according to Ss. 74, 526 and 539-A Cr. P. C — Oath Commissioner recording statement of P. W. in which P. W. exonerating accused of liability—Held : There being no provisions in Cr. P. C. authorising Oath Commissioner to record affidavit not covered by Ss. 74, 526, 539-A Cr. P. C., such affidavit to be no legal evidence—Held farther : Departure from normal procedure to make affidavit highly suspicious document — Criminal Procedure Code (V of 1898)—Ss. 164, 74, 526 & 539-A. [P. 480]£ (vili) Dying Declaration­ s—Evidentiary value of—Two injuries on person of deceased—Omis­ sion of one injury—Effect—Injured suffering two injuries on his person omitting to mention second injury both to S. I, and doctor- Second injury first overlooked by doctor and then omitted in dying declaration—Verification in medico legal report showing that injured bad not obtained medical certificate from another doctor—Veri­ fication not signed by deceased—Doctor also not present at time of recording statement of deceased—Held : Dying declaration being highly doubtful, same to be ruled out of consideration—Evidence Actttof 1872)-S. 32. [P. 478]B Sardar Muhammad Ishaq Khan, Advocate for Appellant. Mr. Farooq Bedar, Assistant Advocate-General for State. Date of hearing : 27-5-1984. JUDGMENT Mazharul-Haq, J.—Abdul Majeed (19) was tried for the murder of Abdul Aziz. OB 6-4-1981 learned Sessions Judge, Rawalpindi, convicted him under section 302, P. P. C. and sentenced him to death with a fine of Rs. 10,000 which if realized was ordered to be paid as compensation to the heirs of the deceased. Appeal of the convict and the connected murder reference ars before us. 2. About a fortnight before the occurrence in this case, Abdul Majeed (accused) grazed his goats in the maize field of P. W. Muhammad Akbar uncle of Aziz (deceased). A dispute arose but the matter was hushed by the village respectables. Nevertheless, Abdul Majeed held out a threat that he would avenge the insult. According to the prosecution, Abdul Aziz (deceased) who was a suzuki van driver on 22-10-1978 at about 8-30 a.m. came out of his house and proceeded towards the fields in order to make water. As he passed near the house of one Mukhtiar, Abdul Majeed (accused) resident of village Brothi appeared there with a knife in his hand. Raising a lalkara, he gave two knife blows to him, hitting him in the abdo­ men and in the left back chest. Abdul Aziz fell down. The occurrence was witnessed by P. Ws. Muhammad Zahoor and Muhammad Nasir. They also intervened but the accused fled away with the Weapon. Abdul Aziz was rush­ ed to Civil Hospital, Kohota, where P. W. Dr. Dalel Khan, Medical Officer, examined him and found "An incised wound 1|" x 1/3" into abdominal cavity deep in oblique direction on the left side of umblicus with portion of abdominal structures outside the wound." The second injury noted by him was an "incised wound If" x \" going deep into the chest cavity in its medial part. It was muscle deep in the lateral part and in oblique direction on the back of lateral side of left chest 1^-" below and lateral to the lower part of left scapula." Since Abdul Aziz's condition was serious, therefore, the doctor rang up P. W. 11 Bahadur Shah, S. H. O., Police Station Kahota who soon reached the hospital. The S. I. made a query from the doctor through Exh. P. E. whether Abdul Aziz was fit to make a statement. Through ek. P. E/l, the doctor opined in the affirmative. The S. I. recorded Abdul Aziz's statement Exh. P. A/I at 10 a m. and it was signed by Abdul Aziz. It may be mentioned here that deceased's second injury was observed by the doctor for the first time when the injured was about to be sent for treatment to the D. H. Q., Hospital, Rawalpindi. He, therefore, made a note of it later in the medico-legal report Exh. P. D. Strangely enough, even Abdul Aziz (deceased) omitted to mention this injury in his statement Exh. P. E. The S. I. however, recorded his supple­ mentary statement at 10 15 a.m. the same day in which he made a mention of the injury in the back left chest. However, on the basis of deceased's statement, formal F. I. R. Exh. P. A. was registered at Police Station Kahota the same day at 10.15 a.m. The S. I. went to the place of occur­rence, inspected the spot, took into possession blood-stained earth and recorded the statements of the witnesses. On the following day, he receiv­ ed information that Abdul Aziz had died in the D. H. Q., Hospital, Rawalpindi . The dead-body was brought back to Civil Hospital. Kahota. The S. I., prepared the necessary documents and sent it for post-mortem examination. There is no evidence forthcoming from the D. H. Q., Hospital, Rawalpindi . 4. P. W. 6 Dalel Khan, Medieal Officer, Civil Hospital, Kahota, held the autopsy on 23-10-1978 at 2 15 p.m. He observed the same injuries which be had noted earlier. On internal examination, he observed both lower and the upper part of the stomach punctured. The diaphragm was pierced, left lung was punctured through and through in its lower part. Death in his opinion was due to shock and haemorrhage caused by the two injuries which were individually sufficient to cause death in the ordinary course of nature. 5. On 24-10-1978, P. W. II Bahadur Shah, S. I., arrested Abdul Majeed, who led to the recovery of blood-stained knife P. 3 from his house 29-10-1978. It was made into a sealed parcel through memo. Exh. P. G. attested by P. W. 7 Jehandad and the investigating officer. P. W. Farzand AH was given up as unnecessary. After completing the investigation, the accused was set up for trial. 6. Abdul Majeed, accused, denied guilt. He ascribed the case to enmity and suspicion. In his defence, he produced D. W. I Syed Shaukat Raza Zaidi, Advocate, a local Oath Commissioner who was said to have attested the affidavit Ex. D. A. allegedly made by P. W. Muhammad Zahoor an eye-witness in this case exonerating the accused of the liability. For good reasons, trial Court did not place reliance on affidavit Ex. D. A. It observed that there was no proper verification of the affidavit because the Oath Commissioner had not signed each page particularly the certifi­ cate on the second page. P. W. Muhammad Zahoor denied having made the affidavit before the Oath Commissioner. Under these circumstances, it was rightly ruled out of consideration. Relying on the evidence of the :wo eye-witnesses namely P. W 4 Mihamnad Zahoor and P. W. 15 Muhammad Nasir, the evidence of the recovery of the blood-stained knife P. 3 from the accused and the dying declaration Ex. P. A./I. trial Court considered the prosecution case satisfactorily proved against the accused. 7. Criticizing the finding, learned counsel for the appellant contended that the nature of the injuries suffered by the deceased indicated that he could not have been conscious as his stomach at two places and one of his lungs had been ruptured. This is also supported by the other circumstan­ ces i. e. had Abdul Aziz been conscious, he would not have omitted to mention the second injury suffered by him in the back, both to the S. I. and the doctor. The fact that the second injury was overlooked first by the doctor and then omitted in the dying declaration makes the dying declara­ tion a highly suspicious document. There is yet another circumstances which indicates that the deceased was not in a fit state to make a statement i. e in the medico leg tl report Exh. PD a verification was entered to the effect that the injured had not obtained a medical certificate from another doctor. Strangely enough, this verification was not signed by Abdul Aziz (deceased). Moreover the doctor was also not present when the statement of Abdul Aziz was recorded. It was highly doubtful whether he was fit to make a statement, The dying declaration will therefore, have to be ruled out of consideration. 8, In so far as the recovery of the knife P. 3 was concerned, it is in the prosecution evidence that after giving the first blow in the abdomen, the deceased held the accused by his hand and thereafter, the accused in­ flicted the second injury to the deceased. Under these circumstances, appellant's clothes would have been stained with blood but there is no re­ covery of his clothes. As to the knife, the prosecution case is that the appellant took it away and concealed it in his house with blood-stains on it. Had the accused taken care to conceal the weapon in his house, he would ha «o then not let the blood remain on it. Further, we find that the only member from the general public who was produced at the trial to prove the recovery of the knife namely P. W. 7 Jahandad was deceased's uncle. Besides, contradiction between his statement and that of the investigating officer with regard to the place from where the witness bae joined tht inve$- tigation, we find that Jehandad was a resident of village Nara, situate at a distance cf 1} miles away from village Bhroti where the accused lived. Asi contemplated' by section'103 Cr. P. C. the witnesses of the locality had notp been joined to attest the recovery. We are, therefore, not satisfied with the) evidence of recovery in this case. 9. Prosecution is left with the statements of two eye-witnesses namely P. W. 4 Muhammed Zahoor and P.W. 5 Nasir. P.W. Muhammad Zahoor deposed that after having a shave, he came out of the shop of Sodagar, bar­ ber, PW Nasir met him near Khan Hotel and as they were talking to each other, he heard abuses and saw Abdul Majeed, appellant, running after Abdul Aziz (deceased) saying that he would teach him a lesson for having abused him a few days ago. Thereafter, they grappled with each other. The accused who had a knife in his hand inflicted a blow in the abdomen and another in the back of the deceased. As Abdu! Aziz fell, the accused fled away. Corroborating P. W. Zahoor's testimony, P. W. 5 Nasir said that he came out of Khan Hotel after having tea when he met P.W. Zahoor who had had a shave at the barber's shop and as they were talking to each other, they heard a noise and the witness saw Abdui Majeed coming from the fields with a knife. At that time Abdul Aziz was urinating in the street. Abdul Majeed declared that the deceased would not be spared, upon which Abdul Aziz got up and the accused inflicted a blow in his abdomed near the navel. The deceased tried to catch the accused by his arm. Getting himself released, the accused inflicted the second blow in deceased's back. According to P. W. Nasir, they rushed towards the de­ ceased and held him before he could fall on the ground. The accused there, after ran away. The discrepancies appearing in the statements of the two eye-witnesses have a reasonable explanation /. e. according to P. W. Nasir, the deceased was urinating when the accused appeared with a knife whereas according to P. W. Zahoor, the deceased was standing in front of the house of Mukhtar when the accused appeared on the scene. There does not appear to be any material contradiction because in all probability when P. W. Zahoor was attracted towards the place of occurrence, the deceased may have just stood up after urinating. According to P. W. Zahoor, the two grappled with each other but P. W. Nasir has not mentioned anything about the grappling. According to both the witnesses, after the first knife blow in the abdomen, the deceased tried to grip appellant's hand which he got released and inflicted the second blow. In all probability, this may have been considered grappling by the witness. Further according to P. W. Zahoor, the deceased fell whereas according to P. W, Nasir. they held the deceased before he could fall. This again is not a material discripancy. After having been injured, Abdul Aziz must have staggered. Whether hej was given a support by the witnesses before he actually fell down or in faci|0 he did fall would not make any difference because often in describing a| situation, witness has a manner of his own in describing it. If there is al contradiction with regard to an important and material fact that cannot however be, overlooked which there is none in this case. As such the discre­ pancy so occasioned should not adversely reflect on the main evidence of the two witnesses in this case because they have fully corroborated each other about the attack on deceased. Their presence at the spot was natural. They have no axe to grind against the accused nor have any relationship with the deceased. True, P.W. Muhammad Nasir was a main of Abdul Aziz (deceas­ ed) but that alone would not make him an interested witness. Both P. Ws. Muhammad Zahoor and Muhammad Nasir bad no motive to falsely rope in the accused on a capital charge. There is no reason to disbelieve them. As to the affidavit, Exh. DA, alleged to have been made by Zahoor P. W., we have observed earlier that for good reasons, it has beeen ruled out by the trial Court. We may, however, and that a procedure has been laid down under section 164 Cr. P. C. for recording the statements of witnesses during |the course of an investigation. There is no provision in the Criminal Pro­ cedure Code which authorises an Oath Commissioner to record such a fildavits, the subject-matter of which is evidence in a criminal case. There are jonly three sections in the Code of Criminal Procedure i. e. Sections 74, 526 and 539-A, according to which a fact may be got proved by an affi­ davit. It, therefore, follows that an affidavit not covered by these sections is not a legal evidence. A departure from the normal procedure would make the affidavit a highly suspicious document. In this case, even the witness has denied the contents of the affidavit. 10. In the end, it was contended that there could be no motive with the appellant to attack the deceased because it was the prosecution case that maize crop of deceased's uncle P. W. 8 Muhammad Akbar was damaged by appellant's goats. P. W. 8 Muhammad Akbar admonished him and the two grappled with each other. It was thereafter, that the deceased alongwith others appeared on the scene and the matter was compromised. Under these circumstances, the appellant need not to have held out at threat to the deceased as alleged by the prosecution. Learned counsel fur­ ther argued that what transpired between the deceased and the accused immediately before the occurrence is also not known. On the contrary, there was evidence that abuses were hurled and the two grappled with each ther. It would thus at the most be a case of a sudden fight. True, the earlier incident was between P. W. 8 Muhammad Akbar and the appellant but it is noteworthy that the deceased appeared on the scene to help his uncle. The appellant and the deceased were of about the same age and in all probability may have by the co-villagers. Be that as it may, what trans­ pired on the day of occurrence between the appellant and the deceased may !not have been withm the hearing of the two eye witnesses but even other­ wise we find that the appellant inflicted two knife injuries which were indi vidually fatal. The deceased was unarmed. The appellant thus acted in a cruel and unusual manner. For this reason too, he could not be extended the benefit of Exception IV to Section 300 P. P. C. Since in the earlier dispute, the deceased was not directly concerned and the immediate cause of the attack was not known, therefore, while maintaining his conviction, we do not propose to confirm the death sentence which is substituted for imprisonment for life. Sentence of fine is, however, maintained but he shall be entitled the benefit of section 382-B Cr. P. C. (Aq. By.) Conviction maintained.

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 480 Present : QURBAN SADIQ IKRAM, J NASRULLAH—Appellant versus THE STATE—Respondent Cr, Appl, No. 632/81, decided on 13-6-1984. Pakistan Penal Code (XLV of I860)-

Ss. 302 & 304 (1) read with Ss. 97 & 99—Murder — Oflenee of— Right of private defence—Plea of—Evidence, appraisal of—Deceas­ ed and his uncle found aggressors— Occurrence, result of exchange of abuses on two earlier occasions between parties—Injuries on person of appellant, all simple and on non-vital parts of body- Appellant on other hand, inflicting grievous and simple injuries with dagger on person of deceased—Held : Appellant having exceeded bis right of private defence and being guilty under S. 304 (1) P.P.C., sentence of seven years R. I. to be awarded. [P. 484]4 & B Mr. Aitzaz Ahsao, Advocate for Appellant, Malik Sarfaraz Hussain, Advocate for State Date of bearing : 13-6-1984 JUDGMENT Nasarullah appellant aged about IS years was convicted by the learned Addl. Sessions Judge, Gujranwala, vide judgment dated 29-10-198J, for the murder of Zahid Hussian and sentenced to imprisonment for life and a fine of Rs. 10,000 - or in default two years R. I. He has come up in appeal against the said judgment by which his co-accused Saifullah was acquitted, 2, The prosecution case in brief is that the complainant Muhammad Ashraf (P.W. 7) resided in village Mandiala Chhatha where his brotherin law Riyasat Ali also resided along with his family. About two months before the present occurrence, which took place on 2-10-1979, at about Degerwata, Nasarullha appellant along with his friends, Zafar and Khalid Hussain, peeped into the house of Riyasat AH aforesaid to intimidate his daughters. This was objected to by Javed Iqbal P.W. brother of Muhammad Asbraf P.W. and Zahid Hussain deceased aged 14 years. There was a quarrel but the respectables of the locality separated them. Again on 1-10-1979, at 6 p. m. Nasarullah accused and his aforesaid companions started peeping into the house of Riyasat Ali. Zahid Hussain deceased and Javed Iqbal (P.W. 8) took exception to the conduct of Nasarullah appellant and his companions, who started abusing Zahid Hussain deceased and uncle Javed Iqbal, and thereafter stood in the street along with Iftikhar and Saifuliah (acquitted accused). Ali Akbar Lambardar P.W. 5) intervened and separated them. It is further stated that on 2-10-1979 at Degerwala, Zahid Hussain deceased along with Javed Iqbat (P.W. 8) was coming back to his house with fodder loaded on a she-donkey. Muhammad Ashraf (P.W. 7) and Riyasat Ali (given up PW) were following them at some distance. When Zahid Hussain deceased reached near the field of one Irshad AH, Nasarullah accused-appellant and Saifullah (acquitted accused) both armed with Khcmjers came out of the said field and attacked Zabid Hussain, Nasarullah appellant gave the first blow which fell on the abdomen of Zahid Hussain as a result of which the intestiner came out of the abdomen. He fell down whereafter Saifultah gave knife blow on the right rib of the deceased. Then both the accused inflicted more injuries on the person of Zabid Hassajn, The occurrence was witnessed by Muhammad Ashraf (PW. 7), Javed Iqbal (PW. 8) and Riyasat Ais (given up PW.), The accused ran away from the spot with their respective weapons. A Chadar was placed around the abdomen of Zahid, who had become unconscious, He was taken to the bus-stand for goig to the hospital but before they could catch the bus, Zahid Hussain expired at the bus-stand, S.I.Muhammad Zafarullah (PW. 11), who was on patrol in the area, reached the bus-stand where Muhammad Ashraf (PW, ?) made statement Ex. PB on the basis of which Nur Hussain Moharrir Head Constable recorded the formal first information report Ex, PB/1. After registration of the case, the police undertook investiga­ tion, Both the accused were arrested on 3- iO- 1979. On that very day, Nasarullah appellant led to the recovery of dagger PB which was taken in possession h\ Muhammad Zafarullah S. I. vide memo. Ex P G in the persence of Muhammad Hussain (PW. 9) and Muhammad Sharif (given up PW), AxorJUng to the report of the Chemical Examiner Ex. PK., the dagger was not stained with blood and therefore not sent to the Serologist for further examination, Nasarullah appellant was challaned alongwith his acquitted co-accused, and convicted as stated above. 3, In support; of its case, the prosecution examined Muhammad Ashraf (PW ',} and Javed Iqbal (PW. 8), both uncles of Zahid Hussain deccassd, as eye- witnesses. Dr Irntiaz Ahmad Cheema (PW. 6) had conducted post-mortem examination on the dead body of Zahid Hussain and had found tae following injuries:— (1) laeised wound 2.5 x 2 c, m. into going deep on the lateral side of right flank ? c. m. above the right illiac crest. (2) Iccised wound 2 x 1 c. m. x muscle deep on the back of right chest out sider upper part. (3) Incised wound shoulder. i x c. m. x skin deep on the top of right (4) Contusion 2 x 1 c. m, on the back of left chest upper part 4 c. m. left to middle line. (5) Incised wound 2 x 1 c. m, x skin deep on the back of left thigh lower part. (6) Abrasion 3 x 2 c. m. on the outer side of left knee joint. (7) Abrasion 2 x 1 c. m. on the inner side of right knee joint. In the opinion of this witness injury No. I was grievous and was sufficient to cause death in the ordinary course of nature. All other injuries were simple in nature Injuries Nos. !, 2, S and 5 had been caused by sbarp-edgvd weapon while other injuries bad been caused by blunt weapon. A; stated above, PW. 9 Muhammad Hussain witnessed the recovery of dagger S" 8. Ali Akbar Lambardar (PW. 5) deposed about the motive occurrence which had taken place a day earlier to the present occurrence. PW. U-Muhammad Zafarullah S, !, has investigated this caw. 4. The acquitted accused Saifullah denied his presence at the spot. Nasarullah appellant admitted the date, time, and place of occurrence, He also admitted his presence at the spot and pleaded that he was returning from School when he was way-laid by Javed iqba! (PW. 8), armed with dagger, and Zahid Hussain deceased, armed wiih Danda. It was pleaded by him that the dagger of Javed Iqbal PW tell down which was picked up by him. Zahid Hussain caused him injuries whereafter he had inflicted injuries on the deceased with the said dagger in self-defence. He produced his birth certificate Ex. DD and did not produce any other defence evidence. 5. I have gone through the entire evidence in this case with the assistance of the learned counsel for the appellant and the State. It is contended by the learned counsel for the appellant that in view of the admission of Nasarullah appellant, he would not challenge the time and place of occurrence as well as the presence of Javed Iqbal (PW 8) and also the presence of Nasarullah accused. It was argued by him, as admitted by the S. I. Zafarullah (PW. 11) that at the time of arrest Nasarullah accused was found injured and that he got him medically examined from the medical officer. He referred to the medico-legal report pertaining to Nasaruilah accused though not formally proved and accepted on the record of this case. According to this report, Nasarullah accused was found to be having 11 injuries on his person, out of which injuries Nos. 7 and 8 had been caused by sharp-edged weapon and the rest by blunt weapon. He was examined on 2-10-1979, at II p. m. All the injuries were simple in nature. It was, therefore argued that the prosecution case is not worth reliance because the witnesses have suppressed the injuries on the person of Nasarullah accused and, as such, it is established that Nasarullah had acted in the right of his private defence. Learned counsel for the State has controverted these arguments of the learned counsel for the appellant. 6. I have considered the evidence on record in the light of the arguments of the learned counsel. The injuries on the person of Nasar­ ullah appellant were not explained in the F I. R. These injuries were not stated or explained by the two eye-witnesses in their examination in-chief. Javed Iqbal (PW. 8) in cross-examination stated that Nasarullah had a fight with one Iftikhar, a little before the present occurrence, and had received the injuries in that incident. It was further stated by him that the said Iftikhar was present at the time of recording of the F. I. R. Ex. PB at the bus-stand but still this fact was not mentioned in the F, I. R. nor the statement of said Iftikhar was recorded by the S. I. at the bus stand. It was further admitted by Javed PW in cross-examination that at the time of present occurrence he had seen the clothes of Nasar­ ullah accused already stained with blood before he had caused injuries to Zahid Hussain deceased. This explanation clearly is an afterthought. The omission of the presecution witnesses to explain the injuries on the person of Nasarullah accused is material. In this view of the matter, I find that the story put forth by Nasarullah accuased in his statement under section 342 Cr. P. C. is plausible. It will be noted that the prosecution witnesses were annoyed with Nasarullah accused, who alongwith his companions used to peep into the house of Riyasat Ali (given up PW) and which had resulted in exchange of abuses on two earlier occasions between the parties. It therefore, appears that Nasarullah was attacked by Zahid Hussain deceased and Javed Iqbal PW when he was returning from school about Degerwala on the day of occurrence 1, It is correct that Zahid Hussain and Javed Iqbal were the aggressors and Nasarullah had a right to defend himself but in the facts and circumstances of the case, I find that he had exceeded his right of private defence.. The injuries on the person of Nasarullah iccused were all simple in nature and not on the vital parts of his body. According to him, the dagger of Javed Iqbal had fallen down which was picked up by him and he inflicted injuries on Zahid Hussain with that dagger. Zahid Hussain, according to him, was armed with ^anda and had caused only s'mple injuries to Nasarullah accuased. In this view of the matter, Nasarullah was not justified/entitled to inflict pevotus and simple injuries to Zahid Hussain deceased. I, therefore, ind hat Nasarullah exceeded his right of private defence and was gulity under section 304 (I) PPC. He is accordingly convicted for the said offence and sentenced to seven years R. I. and a fine of Rs. 10,OQO/-or in defult two years R. I. He was arrested on 3-10-1979 and is in prison since then. He will be given the benefit of section 382-B Cr. P. C. from 3-10-1979 to the date of his conviction on 29-10-1981, with this modifica­ tion, this appeal is disposed of. (Aq. By.) Order accordingly.

PU1984 Cr PU1984 Cr. C. (Peshawar) 484 [D. I. Khan Circuit Bench] Present ; ABDUL KARIM KHAN KUNDI, J GHANIUR REHMAN-Petitioner versus THE STATE—Respondent Cf. Mise. Application No. 132-D/1983, decided on 30-5-1984 (i) Criminal Procedure Code (V of 1898)-

Ss. 439-A & 561-A—Sessions Judge—Revisions! Jurisdiction of Exercise of—Order passed in—Challenge to—High Court—Inherent powers of—Exercise of—Impugned order of Additional Sessions Judge passed in exercise of powers conferred uader S. 439-A, Cr.P.C based on wrong interpretation of law—Held : Petitioner being left with no remedy to set at nought injustice done to him, High Court to be justified to exrecise its inherent powers under S. 561-A, Cr. P. C. to set aside impugned order passed in revision in order to do real and substantial justice in case and to prevent abuse of process of court and to secure ends of justice. [P. 487]X (ii) Criminal Procedure Code (V of 1898)—

Ss. 561-A & 439-A—Sessions Judge—Exercise of revisional juris­ diction of—Order passed in—Challange to—High Court—Inherent owers of—Exercise of—Licensed shot, gun not connected with com. mission of offence in any manner confiscated by Additional Sessions Judge while exercising jurisdiction under S. 439-A—Held : Confisca­ tion being for no rhyme and reason, sliot, gun to be returned to licensee, [P. 487JS" Mr. Muhammad Iqbal Khan Kundi, Advocate for Petitioner, Haji SaadsIIah Khan, Advocate, A, A. G. for State. Dates of hearing : 28 & 3G-5-1984, JUDGMENT Gbaniur kehmau was charged for criminal intimidation by firing 2/3 shots at the house of Izzat Khan complainant and his brother Mehr Walt. (P. W.) under section !06 P. P. C. vide F. I. R. No. 200 dated 21-10-1982 P. S. Naurang, District Bannu. At the trial Izzat Khan, the complainant and his father Shaista Khan appearing as P. Ws. had, however, claimed that the accused had infact fired at them with intention of murder which luckily went amiss. They thus attempted to make it out a case of attempted murder against the petitioner. In their assertions as such the complainant, however, stood rebutted by his statement in the F.I.R, while Shaista Khan (P.W.) by his statement under section 161 Cr.P.C. There were also not found crime empties card board discs, pellets or marks of the pellets on the walls around from the spot in corroboration of their ocular evidence. 2. On examination under section 342 Cr, P. C. the accused petitioner professed innocence and charged the P. Ws. being a father and son immically disposed towards him and interested in his false involvement. The evidence as above was, however, believed by the trial court who proceeded to pass the order in the words :— "In convict the accused for one year imprisonment, but I cancel his imprisonment due to his first offence. I send him on proba tioa for the period of one year ..................... ". It may be stated here that the learned Magistrate was perhaps in-experienc ed to pass the above order coached in in-artistic language and not to differentiates between conviction and sentence. After finding, an accused guilty the court first orders his conviction and then proceeds to pass a suitable sen-' tence on him commensurate with the gravity of the offence. Here the trial court has convicted the accused for one year imprisonment due to inadver-tance or lack of knowledge and at the same time he sent the accused-peti­ tioner on probation for a period of one year. His order comprises of two parts, one part of the conviction and sentence and the other part of the probation. The first part to the extent of conviction is alright but to the extent of sentence is seemingly wrong as at the same time the court has also proceeded to send the accused on probation. 4. The defect as pointed out above, was taken notice of by the learned Additional Sessions Judge Sannu at Lakki in revision. He referred to a S. B. authority published in PLD 1967 Peshawar 105 which laid down a law that under section 6 (b) of the Probation of Offenders Ordi­ nance, 1960 after recording the conviction of the accused if the Magistrate forms an opinion that instead of sentencing the person at once he may be sent on probation, he shall proceed to pass the orders of probation and if the Magistrate passes the orders of sentence of imprisonment against an accused -person and also places him on probation at the same, fim 4 the order of sentence would nullify the order of probation, following the authority the court of revision declared the order of probation unlawful and ordered the accused-petitioner to suffer the imprisonment. Unfortunate !y, PLD .969 Peshawar 226, 3 Division Bench, authority, was not brought to his notice which dissented from the S B. authority, holding that if by inadvertanee the Magistrate while releasing an offender on probation has also at the same time sentenced him to imprisonment the same will not render the order regarding probation unlawful. In the later authority reference was also made to the provisions of sections 562, 563 and 564 of the Code of Criminal Procedure, since repealed and substituted by the Probation of Offenders Ordinance, 1960, in connection therewith the Lahore High Court had quashed the orders regarding the sentence and maintained the orders regarding the probation in cases published in A.I. R. 1930 Lahore 56 and A. I. R, 1934 Lahore 514. 4-A. In fact under section 5 of the Probation of Offenders Odinance, 1960, the court has the powers to make a probation order in caser of con­ viction of an accused-person for certain offences if in his opin on having regard to the circumstances including the nature of the offenie and the character of the offender, he considers it expedient for which he has to record reasons in writing that instead of sentencing him at on he should make a probation order placing the accused under the supervision of a Probation Officer for a period from one year to three years binding him to commit no offence and to keep peace and be of good behaviour during the said period and if called upon to appear and receive the sentence during the period of bond. Thus in a way the court passes the order of convic­ tion as well impliedly the order of sentence but suspends the order of sentence and instead sends the offender on probation under the bond and as long he complies with the requirements of the bond not to commit an offence and to keep peace and be of good behaviour and fulfills any other condition of the bond, he continues on probation while in case of contra­ vention of the bond, the accused is called upon to appear and receive and undergo the sentence during the period of the bond. 5. Since the impugned order of the learned Additional Sessions Judge was made in exercise of the powers conferred by section 439 A Cr. P. C. while clause (b) of sub-section (4) of section 439 forbids the High Court to entertain any proceeding in revision with respect to the order made by the Sessions Judge under section 439-A, as such, the petitioner having been left with no remedy to set at naught the injustice done to him by the impugned order which has been found based on wrong interpretation of law, he invoked the inherent powers of the High Court to secure the ends of justice. la a case like the one the High Court shall be justified to exercise its in­ herent powers under section 561-A Cr. P. C. to set aside the impugned orders passed in revision in order to do real and substantial justice in the cause and to prevent the abuse of the process of the court and to secure the ends of justice and in the instant case for added reason also because the trial court bad recorded the conviction of the petitioner on the un­ corroborated inconsistant testimonies of interested witnesses. I would have better thought about the all out release of the petitioner in face of the evidence but shall preferably refrain because of petitioner having accepted the conviction by not filing appeal and also not making such a prayer to me, may he, on account of guiltv mind on hi? part, 6. By the impugned order, the learned Additional Sessions Judge has confiscated the licensed shot gun but for no rhyme and reason. The shot gun has not been connected with the commission of the offence in any manner. It shall, therefore, be returned to the licence, 7. As a result, the impugned order of the learned Additional Sessions Judge is hereby set aside while that of the trial Court is restored with modification that on conviction under Section 506, P. P. C. the petitioner is sent on probation for a year on furnishing the requisite bonds, Order accordingly, (TQM) Application allowed,

PLJ 1984 Cr C, (Peshawar) 487 [DB] PLJ 1984 Cr C, ( Peshawar ) 487 [DB] Present NAZIR AHMAD BHATTI & FAZAL 1LAHI KHAN, JJ AZAM KHAN -Appellant 1 it sws THE STATE—Respondent Ci. Appl. No. 4i;83, decided on 2-6-1984, (i) Pakistan Penal Code (XLV of I860)- —Recovery—Empty shell or spent bullet—Noti-recovery of— Effect of—Held ; Non-recovery of any empty shell or spent bullet not to exclude possibility of shots having been fired from shot gun and rifts. [P. 4»2}A (II) Pakistan Penal Code (XLV of I860)— -—Witness—Close relation of deceased—Testimony of—Credibility of—Held : Mere fact of P.Ws. being closely related to deceased not to cast any doubt on their evidence—Presence of P. Ws. established at spot—Relationship with deceased, held to be immaterial and especially so when evidence of such P. Ws. be corroborated by med\ca\ and citcuttvstatttml evidence, rp. 49310 (iii) Criminal Trial— ——Evidentiary value of—Held :— FIR being not exhaustive piece of evidence sufficient facts disclosed in its broader circumstances to be, sufficient. [P. 4931E, (if) Criminal Trial-

Ss. 302/34—Murder, Offence of—Evidence, application of—Con­ viction basis for— Previous blood-feud and enmity between parties existing—Eye-witnesses natural witnesses and their presence at spot at relevent time confirmed beyond any doubt-Injury on person of deceased proved—Use of different types of weapons proving presence of more than one accused at spot-Long abscondence of appellant also strong circumstance in proving his guilt—Co-accused tried, convicted and his sentence maintained uptill Supreme Court—Held : Offence committed by accused having obtained judicial recognition of correctness appeal not to be accepted in absence of any material. [Pp. 492 & 493]5, C,F&G (t) First Information Report— ——Ss. 302/34—Murder of Offence—Sentence—Co-accused sentenced to life imprisonment—Case of appellant, held, not to be separated from his co-accused in confirming death sentence—Both accused charged for committing murder in similar circumstances—Held : Same treat­ ment to be given to appellant in matter of sentence. [P. 493]tf PLD 1970SC447reI. Mr. Zabooru! Haq, Advocate for Appellant, MJan Muhammad Ajmal, Law Officer for State. Kb. ohammad Khan and Mr. Q. T. Mobynddin, Advocates for Complainant. Date of hearing : 16-4-1984. JUDGMENT Nazir Ahmad Bhatti, J.—Appellant Azam Khan has been convicted by the learned Additional Sessions Judge-II, Peshawar vide Judgment dated 8-5-1983 under Section 302/34 P. P. C. on two counts, for com­ mitting murders of Afsar Khan and AH Akbar, and sentenced to suffer death on each count and to pay a fine of Rs. 5 S 000 also on each count or in default to undergo R. I. one year also on each count. The fine, if realized, has to be paid to the heirs of both the deceased in equal shares. He has also been paid guilty under section 449/34 P.P.C. and sentenced to suffer R. I. for five years. 2. By this appeal, the appellant has challenged his conviction and sentence. A murder referance (No. 9 of 1983) has also been forwarded by the learned Additional Sessions Judge for confirmation of the sentence of death. The present judgment will also dispose of the said criminal reference. 3. The first information report of the case was lodged by Mst. Hussan Zeba on 1-1-1976 at 900 hours in P. S Shabqaddar under No. 1. According to this F.I.R. the complainant Mst. Hussan Zeba, her son Afsar Khan, her daughter-in-law Mst. Haya Dara and her daughter Mst. Bakhat Mina were present in the house at 7-30 a. m., when in ihe mean­ time accused Saifullah son of Shahzanda, accused Saadat and Azam Khan sons of Dorane, entered the house of the complainant, armed with 'topaks'. Accused Saifullah ordered accused Saadat Khan to kill Afsar Khan whereupon accused Saadat and Azam fired at her son with which he was injured. All the three accused then went out of the house, followed by the complainant party who were making hue and cry. At that very time, Ali Akbar, son-in-law of the complainant, was coming towards the house, who was also fired at with 'topak' by accused Saifullah with which he was injured and died at the spot. Tbe complainant charged all the three accused for injuring her son Afsar Khan and committing the murder of her son-in-law, Ali Akbar on the motive of previous blood-fucd enmity. 4. The appellant who had absconded after the occurrence was arrested on 16-6-1981, He was charged under sections 449/34 P, P. C. and 302/34 P.P.C., to which he pleaded not guilty and claimed trial. Accused Saifullah is still absconding whereas accused Saadat was tried, convicted and sentenced to life imprisonment. 5. The State produced nine prosecution witnesses out of whom P.W. 6 Mst, Hussan Zeba and P, W. 1 Mm. Haya Dara are the eye-witnesses of the occurrence, 6. P. W, 6 Mst. Hussaa Zeba has generally corroborated the contents of the F.I.R., which was lodged by her. However, about the motive, she states that four days before the occurrence both deceased were irrigating their fields but all the three accused diverted water to their own fields by force whereupon an altercation started but she reached the spot and restrained her sons from picking up aa altercation. She has further stated that her son deceased Afsar Khaa was fired at by the convicted accused and the present appellant with which her son was hit and fell down. But the F.I.rt. does not show that accused Saadat had also fired at her son. She has further stated that then the accused started going out of her house and deceased Ali Akbar met them in the street near the house and ail the three accused fired at him with which he was hit and killed. Her son was still alive when she left the house to report the occurrence at the police station. She has further stated that her son-in-law Ali Akbar was fired at by the absconding accused Saifullah followed by the appellant Azam and convicted accused Saadat but he was injured as a result of the shot fired by Saifullah whereas she could not any whether the shots fired by the other two accused also hit him or not. She was examined as a witness on 24-7-1979 in the case against accused Saadat wherein it was incorrectly recorded that the present appellant had not fired at her son-in-law. The F.I.R. also doei not show that the convicted accused Saadat had also fired at her son-in-law Ali Akbar, She admitted that there was blood-fued enmity between them prior to the present occurrence. P. W. 7, Mst, Haya Dara has btated that the complainant party was present in their house at morning time when the three accused entered their house and accused Saifullah ordered accused Azam and Saadat to fire at her husband Afsar Khan, Both tired simultaneously at Afsar Khan who was hit with both the shots and fell down. All the accused went out-side but deceased Ali Akbar was attracted to the spot by their hue and cry and on seeing him, the absconding accused Saifullah and convicted accused Saadat fired at him with which he was injured and fell down and died oo the spot, but her busband Afsar Khan was in the agony of death at that time. She was examined by the police but that statement does not show that appellant Azam and convicted accused Saadat had fired one shot each at her husband. She has further stated that absconding accused Saifullah had not fired at her husband, and the appellant had not fired at Ali Akbar deceased and onlv accused Saifullah and Saadat had fired one shot each at Ali Akbar. 7. P, W. 3. Dr, Anwar Gul performed autopsy on the deadbody of Afsar Khan on 1-1-1976 at ope P, H. and found the following injuries ob external examination 1. One inch circular one wound and three other wounds (en­ trance) 1/4' each in diameter located in an area of one inch below the big wound mentioned above in the left xilla. 2. 2x2 grazing wound on upper and medial side of left-arm. 3. A circular exit wound 1/3" in size on the left side of back. On internal examination the doctor found thoracic wall injured and 5 th and 6th ribs fractured. Left side of pleaurae was injured. Left lung was injured badly. Blood vessels of the left arm bracaial injured. According to the opinion of the doctor death was caused by injuries to vital organs, resulting in shock and bleeding and time between injuries and death was within two and a half hours. The doctor recovered three pellets from the deadbody of Afsar Khan and handed over the same to the police The same doctor performed post-mortem examination on the deadbody of Ali Akbar on the same day at 2 p.m. and found the following on external examination:— 1. One inch circular wound of entrance on the epigastrium and four ntrance wounds 1/4' diameter each scattered in an area ol two inches in diameter around the big wound mentioned above. 2. Circular exit wound 1/3" present on the back of left lumber region. It is the exit of wound No. 1. 3. 1/2'x I" steliate (oblique type) entrance wound on the left side of Deck. 4. 1/2 circular exit wound on the right side of back. This is exit of wound No. 3, On internal examination the doctor found first rib left side fractured and thoracic wall also injured on left side. Both lungs, abdominal walls, peritonium, stomach, pancrea, small intestine, large intestine and liver were found fractured. In the opinion of the doctor death was due to shock and Heeding caused by injuries to vital organs. The doctor has further stated that injury No. 1 was caused by shot gun while injury No. 3 was caused by a bullet. The doctor recovered one pellet from abdomen back side wall of the deceased and handed over the same to the police, and time between injuries and death was about half an hour. The doctor has further stated that both the deceased were done to death by tire arm injuries. In cross-examination, the doctor has admitted that the grazed wound on the body of Afsar Khan could not be caused by a bullet. ^ had previously given opinion that injury No. 3 was caused by bullet d ue to the size of this injury. He was of the opinion that injuries on Afsar Khan were the result of one fire shot. 8. The F.I.R, of the case was recorded by P W. 9 Abdul Hafiz Khan, who was A.S.I, at that time. He went to the spot and both the dead bodies were lying in the house of Afsar Khan where he prepared their injury sheets and inquest reports and sent both the dead bodies for P.M. examina­ tion, He prepared the site plan, Ex. P. B., of the place of occurrence of deceased Afsar Khan and site plan, Ex, P. D. 3, where Ali Akbar was killed. He picked up blood from both the spots. He recovered one empty shell of 12 bore shot gun and one empty shell of 7 M.M. from the place where Ali Akbar was done to death. He investigated the case. The other witnesses are formal witnesses, 9. The appellant was examined under section 342 Cr. P. C. He admitted that the convicted accused Saadat is his brother and daughter of absconding accused Saifullah is married to his other brother Usman. He also admitted that he owned landed property close to the land of the deceased but he denied that any dispute had arisen about the irrigation of their fields. He denied the commission of the offence but admitted that there was previous blood-fued enmity between them. He further stated as under :— "One Ilyas son of Sherin and a nephew of Ali Akbar deceased was murdered for which my brother Ajab was charged. This murder took place prior to the present occurrence. My brother Ajab absconded and endeavoured to compromise the murder case of Ilyas with Sherin and Ali Akbar through the father of Afsar deceased. On the night of occurrence, my brother Ajab had been summoned by the father of Afsar Khan deceased and later on my brother was killed outside the house by persons named in F.I.R. No, 2 dated 1-1-1976 of P.S. Sbabqaddar, Ex. D. X. An attested copy of the site plan of that case is present on the file of the previous trial as Ex. D. X.-l on which I also rely, though the place of the murder of my brother Ajab is shown in the said site plan at some distance but the witnesses have admitted that it is closer than that. The police intentionally equiled the case of my brother Ajab in which the relations of Akbar Khan deceased were charged. The police gave an opinion in that case that my brother was killed by one Ruhullah but his man was not charged at all. I have been falsely implicated in this case". He did not produce any defence. 10. The F. I. R. No. 2, mentioned in the statement of the appellant, charges Faizur Rehman, Waris Khan and Rashid for the murder of his brother Ajab Khan on the same day at morning 'Azan' time while this report was made at 11 a.m. Mir Alam is the complainant in this report and according to it Ajab Khan was murdered to take revenge of the murder of Ilyas, who was brother of Rashid and Waris accused of that case ; and that they had been summoned by one Gulfaraz for effecting a compromise in that case. 11. It was urged by the learned counsel for the appellant that all the injuries on deceased Asfar Khan were caused by one shot and most probably by a 12 bore shotgun, whereas injuries on deceased Ali Akbar were caused by two shots, injury No. 3 by rifle and injury No. I by a shotgun ; and that the eye-witnesses had made a departure from the earlier prosecution story. His contention was that according to this F. I. R. accused Saadat and Azam had fired at Afsar Khan, who was hit both the shots and deceased Ali Akbar was fired at by absconding accused Saifullah, whereas in their evidence before the trial Judge both the eye witnesses have stated that Ali Akbar was fired at by all the three accused. The contention of the learned counsel for the appellant was that the doctor had opined that the injuries on the person of Afsar Khan were the result of one shot, whereas the dimensions of the injuries sustained by the deceased AH Akbar showed that they were caused by two shots and in this context there was a conflict between the medical evidence and the ocular evidence. We have given a serious thought to this aspect of the matter and we are of the confirmed opinion that injury No. i on the person of Asfac Khan could well be caused by a 12 bore shotgun but we cannot exclude the possibility of the injury No. 2 having been sustained by an­ other weapon and most probably by a rifle. It is possible that a shot fired from a riflle may have only caused a grazed wound on the medial side of the left arm of the deceased. The possibility of this wound having been caused by a bullet which may have passed by the arm and very close to it cannot be excluded. He was fired at from a close range and the bullet might have pressed against the arm with great force and in this way this injury with such high dimension could have been caused. We, therefore, do not feel inclined to accept this contention of the learned counsel. In this connection it was further urged by the learned counsel for the appellant that neither any empty shell of any shotgun, nor any spent bullet of a riflle was recovered from the place where Afsar Khan was done to death and this shows that the prosecution story has not corroborated the circum- [stantial evidence. We also do not subscribe to this idea for the simple A [reason that non-recovery of any empty shell or a spent bullet would not lexclude the possibility of shots having been fired from a shotgun and rifle. 12. In so far as the case of deceased Ali Akbar is concerned, the learned counsel for the appellant drew our attention to the contents of the P. I. R, and the ocular testimony in this respect. His contention was that according to the F. I. R., AH Akbar was fired at by accused Saifullah only, whereas in their evidence both the eye-witnesses have stated that Ali Akbar was fired at first by the absconding accused Saifullah and then by the appellant and convicted accused Saadat. He urged that in this way a conflict has arisen between the contents of the F. I. R. and the evidence recorded during the trial ; and that the eye-witnesses have either made a false statement or have made material improvements upon the prosecution case. We have considered this aspect of the case as well. The dimensions of both the entrance wounds 1 and 3 on the body of Ali Akbar show that they were caused by two different weapons. Injury No. 1 appears to be the result of a 12 bore shotgun, while injury No. 3 appears to be the result of a bullet. This conclusion finds further support from the re­ covery of one empty shell of 12 bore shotgun and one empty shell of '7 M M from the place where Ali Akbar was done to death. It is, therefore, proved beyond any doubt that injuries on the person of Ali Akbar were caused by two different weapons and at least two, if not all the accused, fired at him. The possibility that the shot of the third accused having missed its target can also not be excluded. 13. No doubt, there appear to be some discrepancies in the F. I. R. and the ocular testimony but the fact which is of prime importance in this case is that both the eye-witnesses are natural witnesses. Their presence in the house at that time cannot be excluded. In the month of January, 7-30 a.m. is just the time when mostly all the inmates of a house are pre­ sent in the house and arrangements for break-fast are being made. We cannot, therefore, exclude the presence of P. W. 6 Mst. Hussan Zeba mother and P. W, 7 Mst, Haya Dara widow of Afsar Khan because they must be busy preparing tea and break-fast for the members of the family. It has also been established that Afsar Khan was done to death inside the house and immediately thereafter Ali Akbar was done to death outside and close to the house. Consequently, both the ladies are natural witnesses of the occurrence, Their presence at that time is con­ firmed. The mere fact that they are close relations of the deceased would not cast any doubt on their evidence. Once the presence of a witness is established at the spot, his relationship with deceased would be immaterial and especialiy so when the evidence of that witness is corroborated by the circumstancia! and medical evidence. The eye-witnesses both being ladies, some concession has to be given to them for omitting to state certain facts or circumstances in the F. I. R. Moreover, it is now well settled thati F. I. R. is not an exhaustive piece of evidence. It would be sufficient if it|£ discloses the facts in its broader circumstances. 14. The use of different type of weapons also proves the presence ofj more than one accused at the spot and the different dimensions of injuries^ prove that all of them took part in the commission of the offence. 15. The appellant absconded after the occurrence and was arrested about five and a half years afterwards. This long abscondence would alsokr be a strong circumstance in proving his guilt. 16. We also take judicial notice of the fact that co-accused Saadatj was tried and convicted and his sentence of life imprisonment was main { ained up till the Supreme Court, This would show that the offence com­ mitted by that accused had obtained the judicial recognition of correctnesi We, therefore, do not find any material to accept this appeal. However, the sentence of death awarded to the appellant has taxed our minds verymuch. His co-accused Saadat, who is his real brother, has already been tried and convicted to iife imprisonment. We cannot separate the case of the present appellant from his brother to confirm the extreme sentence of death. Both these accused are charged for committing the murder in similar ciscumstaoces and it is difficult to sentence the appellant to death while his brother was sentenced to life imprisonment. We are of the iopinion that the same treatment should have been given to the appellant n the matter of sentence and in this connection we are supported by the case of Shabib Ali r. The State (PLD 1971 Supreme Court 447). 17. We would, therefore, partially accept this appeal to the extent that we will maintain the conviction of the appellant under section 302/34, P. P. C. (on two counts) but would reduce the sentence to imprisonment for life on both the counts. We would maintain the sentence of fine and also conviction under section 449/34. P. P. C. and the sentence awarded to the appellant for this offence by the learned trial Judge. However, both the sentences shall run concurrently. The murder reference is ans­ wered in the nagative. (Aq. By.) Appeal partly accepted.

PLJ 1984 Cr PLJ 1984 Cr. C (AJK) 494 Present : ABDUL MAJEED MALLTCK, C, J. Mst. 3 ANN AT BIBI-Petitioner MUHAMMAD RIAZ –Respondent Cr. Misc. No. 20 of 1984, decided on 18-7-1984 (i) Criminal Procedure Code (V of 1898)— -- S. 100— Search warrant— Action under— Requirement— Held: Section 100 of Cr. P.C. having enjoined upon taking action by Magis trate 1st Class or S.D.M. when possessed with reasons to believe that confinement amounted to offence, »uch Magistrate to have suffi­ cient material before him before issuing search warrants to make him believe that person was in confinement and that circumstances leading to such confinement constituted offence, [P. 49714 (ii) Criminal Procedure Code (V of 1898)— -- S. 100— Words, "Reasons to believes"~Meaning of— Held: Words "reasons to believe'' having been introduced by Legislature with positive object concerned Magistrate to exercise discretion vesting in him by adhering to well-established norms of judicial discretion in order to achieve intended object of such provision of law, [P. 497]B (iii) Criminal Procedure Code (V of 1898)— — — S. 100 — Search warrant— Issunance of— Power o f Court use of — Convincing proof — Requirement of —Desire of detenu (girl) — Compliance of — Non petitioner invoking jurisdiction of Court for issuance of search warrant in respect of detenu, an unmarried young girl from house of her mother where she was born and brought up and lived permanently —Held : Court to be required to ask for convincing proof in addition do calling for mother of girl and record­ing her statement before issuence of search warrant — Magistrate in­ stead sending detenu (girl) back with her mother, acquiring medical evidence in support of age of girl and allowing her to go firstly with one 'S' who was not related to her, and secondly with 'F who was also not related to her with inprohibited degrees— Action of Magisrate, held, neither supported by law nor mornally good to allow un­ married young girl to go along with persons who were not related to her within prohibited degrees — Held further : Power of court to be seldom allowed to be used as a lever for aid and assistance to accomplish, otherwise; illegal object— Non-petitioner in order to avoid liability of abduction and elopement of detenu (girl) manoeusring to seek assistance of court in removing her from lawful custody of her molher— Aid of court to accomplish such desire, held, nothing but abuse of powers of law— Orderof Magistrate found illegal and without jurisdiction — Desire of detenu to go with non-petitioner girl heUl not to be complied with unless (girl) shown be entitled to live with him in a legal fashion—Detenu, in circum­ stances sentback with her mother. [Pp. 497, 498 & 4991C j>,£,f,<7 & H Petitioner in person. Mr. Muhammad Sabir Chaudhry Advocate for Respondent. Date of institution : 27-6-1984, ORDER This miscellaneous application is addressed against an order of S.D.M. Dadyal, recorded on llth June, 1984, in exercise of powers under Section 104, Cr. P, C, 2. Muhammad Riaz, non-petitioner, moved an application before the S. D. M. Dadyal, under Section 100, Cr. P. C. by inviting his attention to the illegal detention of Yasmin Akhtar daughter of the petitioner. It was alleged that Muhammad Ria/ ^nd Yasmin Akhtar were engaged a year ago. The marriage was yet to take place. Muhammad Rehman, Muhammad Sisiemaa and Mst, Jannat Bibi who .lived together, were attributed illegal detention of Yasmin Akhtar in their house by restraining her movement outside the premises. The alleged detenu was threatened with dire consequences in case she objected to yield to the desire of the petitioner. It was alleged that the life of Yasmin Akhtar was in danger, as such isuunce of search warrant in exercise of powers under Section 100. Cr. P. C, was expeditious, The petition was appended with an aii)da\ it. The Magistrate was moved on 3rd June when ths statement of Muhammad Rsaz was recorded in pre­ liminary inquiry. The facts alleged ia the petition were reiterated in his statement. The Magistrate not fet-hng sat:snec" vuth the material brought before him adjourned the case 10 6tii of June for further proof. Due to absence of the Presiding Orikcr rn fnh from the Headquarters, the case v as adjourned to tiie next day wnen <->.; recording statement of one Muhammad Latif, search warrant \wi -sued ana Yasmm Akhtar was produced nefore the Mag.str.ue. Her >l;it<:aieut w^s. recorded and in the light .-, :icr -' .e;ni«nt. -~h£ w,is .'iif-.^vid to go svitn Ch. S.«;ual resident of Ua.'\ai ,hv, On 9rh June two 3ppi,ca!";>o> were moved one b\ M'-h-inim-id Rsa/ ?or canceiiation of vs/wdWf of Ch Sajawa) and kcep.ng the girl in the 'Spurdan' of some third person as well as taking steps for • Niknh' ceremony and the other by Ch, Sajuwa! for cancellation of his • Spurdan'. Both the petitions were considered together and ultimately Yasmin Akhtar was allowed to go with one Kh. Fazal of Dadyai, 3. Mst Jannaf Bibi, v,-, her petition before this Court ascribed the proceedings before sh? sn^('.rd:nate ^ouri as illegals mala fide and without jurisdiction. She hsicii detailed slory reflecting background of illicit relations of Muhammad Riaz and Yasmin Akhtar resulting in manoeurability in the manner of recovery of the girl from her lawful custody and aiding ia elopement of her daughter with Muhammad Riaz. The statements of Yasmsn Akhtar and Muhammad Riaz were recorded in this Court on the last da(e Bom of them demej the allegations of Mst Janna Bibi. oetitiorier 4. The record reflects that Mst. Jannat Bibi is a most miserable woman who soon after her marriages, was deserted by her husband, on which she was compelled to seek protection of her mother and brothers (Muhammad Rehman and Muhammad Suleman) who were magnanimous enough to meet her maintenance allowance, Yasmln Akhtar was born in the house of her brothers and she was brought up the re. This suggests that Yasmin Akhtar whose age was seriously disputed by her mother, was recovered from the house where she was born and brought up, by her mother and maternal uncles. In order to appreciate the point involved in the petition, it is pertinent to reproduce her statement made in this Court : It is clear from her statemcui that sue v,<;> recovered by the Police, on the order of the Court, from her permanent residence where she resided alongwith her mother and material uncles. Her statement contained oo attribution of confinement, cruelty and threats or apprehension of danger to her life, as narrated in the application before the Magistrate. She also denied her contribution arid "will ia moving the Court, She disclosed that the application was moved by Muhammad Riaz. at his own and she was recovered by the Police from her house when she alongwith her mother was present there and her maternal uncles were away. Thus, it is evident from her statement made before this Court that'there was no apparent reason for the Magistrate to believe that she was kept under such circumstances that the alleged confinement amounted to an offence. The S. H. O. who recovered the girl from her house, was also not shown to have supported the alleged confinement, amounting to an offence. His report appearing at page 11 of the file of the subordinate Court, disclosed that Yasmin Akhtar was recovered in compliance with the order of the Court from the house of Muhammad Suleman. The report or recover) memo, was silent as to whether the girl was found in confinement or Ulega) detention, as ascribed in the search warrant. 5. It appears that the S. D. M. was impressed by an averment of en­ gagement of Muhammad Riaz and Yasmin Akhtar and realizing the in­ terest of Muhammad Riaz, perhaps, felt satisfied to take the requisite ac­ tion. The fact of engagement is also not found correct as in the application and his statement before Magistrate. Muhammad Riaz described the per;od of engagement as one year earlier. In his statement before this Court, he described the period of said engagement as 8-10 months. Yasmin Akhtar, on the other hand, in her statement before the Magist­ rate, disclosed that she was engaged 6 months earlier. Likewise, in this Court she said that the engagement took place 6—7 months before. When asked to explain the presence of persons on the eve of engagement, it was stated that the engagement ceremony took place in her house but none of the villagers or her relatives participated in the ceremony. Thus, the claim of engagement appears to be a concoction and a pretext for seeking assistance of the Court. 6. Section 100. Cr. P. C. enjoins upon taking action by Magistrate 1st Class or S D. M. when he was possessed with reasons to believe that the confinement amounted to an offence. The enacting part of this Section lists a condition precedent to the effect that before issuing a search warrant, it was necessary for the Magistrate to have sufficient material before him to make him believe that a person was in confinement and that the circumstances leading to such confinement constituted an offence.! The words, "reasons to believe" were introduced by legislature with a positive object and it was always believed that the Magistrates possessed B with reasons to believe, would always exercise discretion in a judicial fashion. In order to achieve the intended object of this provision of law, it was essential to exercise the discretion by adhering to well accept­ ed norm of judicial discretion. Applying the principle to the present case, when it came to the notice of the Magistrate that his jurisdiction was invoked to issue search warrant for recovery of a young unmarried girl, from the house of mother where she was born and brought up and lived permanently, it was incumbent upon him to ask for convincing proof in addition to calling for mother of the girl and recording her statement before issuance of search warrant. This was more so, as the parties being Muslims and belonging to a class of society which always strongly opposed disposal of unmarried young girl in unceremonial and undesirable fashion as in the present case, to apply his mind to the pro­ position in hand, before taking the action. The departure from the aforesaid principle, obviously, leads to an inference that the proceedings initiated bv the S,D,M, were ill. conceived and bad in law. 1. The concluding part of Section 100, Cr. P. C. lays down that a person, if fourd, shall immediately be taken to a Megistrate who shall make such orders as in the circumstances of the case, seem proper. The use of language in the concluding part of this Section reflects that the legislature vested discretion in the Magistrate to dispose of a person produced before him in an appropriate manner. In other words, the disposal of the person was to be made in a just and equit­ able manner, keeping in view the interest of justice, and public policy. The legislature deliberately avoided to use the words ' that such person shall be set free or allowed to go to a place or with a person of his choice." This was avoided in order to keep the scope and horison of jurisdiction wide and free so as to achieve the ends of justice. In the present case, as discussed earlier, Yasmin Akhtar who was brought before the Magistrafe, when found unmarried young girl, was to be sent back with her mother as the mother exclusively was entitled to her custody. Instead of doing so. the Magistrate, of his own, acquired medical evidence in support of age of the girl and allowed the girl to go, firstly, alongwith Ch. Sajawal and subsequently with Kb. Fazal who were not shown related to her within prohibited degrees, Yasmin Akhtar was admittedly a Carpenter by caste whereas Ch. Sajawal, a Jat and Kb. Fazal, i Kashmiri by caste. The action of the Magistrate was neither supported by law nor it was morally good on his part to allow a unmarried young girl to go alongwith persons who were not related to her within prohibited 'degree. The concluding part of Section 100, Cr, P. C, is, therefore, not again, seen complied with by the Magistrate. 8. It is also noticed that all interim orders and statements of witnesses and Yasmin Akhtar were recorded by the Clerk of Court. The statement of Muhammad Riaz was recorded on 3rd June, whereas it was shown attested by the Magistrate on 4th June, 'Supardnama' of Ch. Sajawal present at page 9 of the file of the Magistrate was dated 7 th March and attesf»d by the Magistrate on 7tn March, whereas the gsr! Was sent on 'Supardari of Ch. S ija-jval on 7Ui Jane. These facts are listed just to highlight manner in which the proceedings were taken before the Magistrate. 9. It is a settled ru!e of law that jurisdiction of the Court is invoked to seek redre-s Withm the frame-work of right and remedy provided by such law. The power of the Court is seldom allowed to be used as a lever for an aid and assistence to a.'comp'ush, other-vise, an illegal object. In the present case, M ihammad Riaz, in order to avoid the liability of abduction and elopement of Yasmin Akhtar, manoeuvred to seek assistance of the Court in removing her from the lawful custody of her mother and thereafter having free hand in a-tuevmg their union. In my well considered view, the aid of the Court to accjin.vUh such a desire was nothing but an abuse of process of law. Tne !«pagai4 order is, therefore, found illegal and without jurisdiction. 10. Muhammad Riaz alleged his 'Nikah' with Yasmin Akhtar contrac-ted after the removal of girl from the custody of her mother. The contention was neither supported by Yasmin Akhtar, in her statement before this Court nor bv any other independent evidence. At this stage, therefore, the claim of 'Nikah 1 cannot be accepted It appears that such, a claim is made just to frustrate the prayer of mother for restoration of custody of her unmarried daughter. It is already noticed that Ch Sajawal, Kh Fazai and Muhammad kiaz are not shown related to Mst. Yasmin Akbtar. so as to allow her to live with either of them. It is true that 3/sr, Yasmin Akhtar declined to go back with her mother and expressed! her desire to go along with Muhammad Riaz but her desire cannot bej complied with unless she was shown entitled to live with Muhammad C Riaz in a leual fashion. In pres .nee of the refusal of Yasmin Akhtarj to go w.th her~mother. the next choice for the Court was to leave her inl the custody of a person related to her within the prohibited de—ees The two maternal ur.ck-s who were available for giving custody cf'trie 2irl were willing to take the custody but iha girl refused to go with the- as "well There is no 'Daru! Amman' in District Mirpur where she should be sent for the period til! her status was determined in a competent Co.r: of 3avv. The other place suitable to the case is civil prison. Sendir; Yasmin Akhtar to civil prison. Mirpur would also not serve the puVp^se a ^ there is no guarantee of security of her chastity ;p the civil prison. In the circum^ta-ices, it is only conducive and close to the interest of '-stice to send her back with her mother with whom she spent the cast :n c^mriete confort and safety The learned Additional Advocate Centra! present "i the Court, is diicctcJ to arrange police for providing protection to Mm. Jannat Bibi, petitioner and Yasrnm Akhtar upto their desired dest.ny. The petition is disposed of accordingly. (Aq. By Order accordingly,

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 499 Present ; RIAZ AHMAD, .1 HAFAZAT ALI SHAH—Petitioner Versus THE STATE-Respondent Criminal Appeal No. 101 84, decided on 26-5-1984. (i) Pakistan Penal Code (XI.V of I860)—

S. 161 read with Prevention of Corruption Act( II of 1947)_S 4— Illegal gratification—Demand and acceptance of-Offence of—Con­ viction for Basis of—Evidence, appreciation of—Appellant, a Pen­ sion clerk creating obstruction in sanction of Leave Preparatory to Retirement applied for bv complainant- Part payment'of amount demanded as illegal gratification made—Prior to making payment of rest ot amount, complainant reporting matter to law enforcing agency as result ot which raid conducted and tainted amount recover­ ed from appellant-Appellant, soon after raid, making admission belt-re raiding Magistrate regarding his having taken tainted amount as illegal gratification—Statement before raiding Magistrate taken into consideration as evidence for raising presumption of law under S 4 of Prevention of Corruption Act that appellant demanded and accepted tainted amount as illegal gratification—Appellant failing to rebut such presumption—Appeal, held, must fail and to be rejected. [Pp. 505 & 506]F,GSiK (ii) Accomplice—

Definition of—Held—Accomplice to be guilty associate or partner in crime, or who, in some way or other whether before, during or after commission of offence, be consciously connected with offence or who admits to have hand in offence —Held further : Accomplice being person involved in criminal act done by his associates, such person on account of presence of mens-rea and his participation in crime to be tried alongwith his associates—Person who cannot be charged, on account of absence of mensrea not to be held to be accomplice. [P. 504] A (iii) Criminal Trial— —Accused—Statement of before raiding Magistrate—Contention that statement of accused made soon after raid by raiding Magistrate not to be taken into consideration because of same having not been put to appellant in his examination under S. 342 Cr. P. C.—Held : Trial Judge having not proceeded to record conviction on basis of variance between such statement and that recorded under S. 342 Cr. P. C,, contention not to be tenable. [P. 506] H (iv) Criminal Trial—

Corroborative evidence—Meaning of—Held ; Corroborative evi­ dence not necessarily meaning evidence through spoken words, same to consist of any circumstanial tending to connect accused with crime. PLD 1962 SC 269 rel. [P. 505j E (v) Criminal Trial—

Decoy witness—Statement of—Corroboratiou for—Requirement of—Held ; Decoy witness though not accomplice, yet rule of law laid down for judging credibility of testimony of accomplice in S. 133 read with illustration (bj to S. 114 of Evidence Act (i of 1872) to be strictly applicable—Held further : Theory of double tests for ap­ praisal of evidence of decoy witness also to he fully applicable, [P. 504] D AIR 1915 Lab. 16; AIR 1928 Lah. 681. AIR i%l SC I 762 & PLD 1967 SC 447 rel. (vi) Criminal Trial— ——Evidence—Conversational evidence—Non-production of—Effect of —Held: Production or non-production of evidence, as to conversation, on part of prosecution and its effectin relation to fate of prosecution case to rest upon facts and circumstance of each case. [P. 504] C (vii) Criminal Trial —

Evidence—Examination of—Defect in—Effect—Held : Inadequ­ acy of examination or defect therein not to vitiate judgment, aor same always to be held fatal ot prosecution case—Held further: Mere possibility that prejudice caused to appellant on account of nonexamination of such statement under S, 342 Cr. P. C. being not enough accused to satisfy court regarding prejudice in fact having been caused to him. [P, 506J J PLD1955FC88: PLD 1955 FC 113; PLD 1956 FC 14V AIR 1931 Lah. 178; 1969 SCMR 461 & PLJ 1978 SC 41 ref. (viii) Witness— -—Decoy witness—Testimony by—Held ; Decoy witness in trial cases not to be accomplice in stricto-senso, because in a way such witness renders useful service by such information with law enforcing agency for upholding supremacy of law. [P. 504] B AIR 1948 Lah. 72 ref. Mr. Nisar Qutab, Advocate for Appellant. Mr. C, M. Latif, Advocate for Respondent. Date of hearing 10-4-1984. JUDGMENT This appeal is directed against the judgment dated 20-2-1984, delivered by the learned Special Judge, Anti-Corruption for Sargodha and Faisalabad, divisions whereby the appellant Hafazat AH Shah was convicted and sentenced to undergo R. 1. for a term of six months, and to pay a fine amounting to Rs. l,000/-on a charge under Section 161 PPC. It was further ordered by the learned trial Judge, that in the event of default in the payment of fine, the appellant shall furthei suffer R. I. for another period of two months. 2. The circumstances leading to the prosecution of the appellant on the aforesaid charge are, that in the year 1982, the appellant was performing duties in the capacity of Pension Clerk in the office of the District Education Officer, Faisalabad . The complainant P. W. 1 Lai Muhammad an employee of the Education Department, was performing duties as Physical Instructor in the Government High School , Samanabad, FaisaUbad. The complainant Lai Muhammad P. W. 1 had to retire from service as he was about to attain the age of superannuation. Before proceeding to retirement, the complainant in accordance with the rules sought Leave Preparatory to Retirement. The service record of the com­plainant, and other relevant papers were sent to the office of the District Education Officer, Faisalabad, and the appellant as a Pension Clerk had to deal with the same. It was alleged that for about four months, the complainant had been visiting the office of the District Eduction Officer, and had been contacting the appellant, who kept on putting of the appellant on one pretext or another. Such delay in the sanction of leave was depriving the complainant to receive his monthly salary. Allegedly the appellant raised number of objections with the result that more than five months elapsed but the relief prayed for by the appellant could not be granted to him. 3. According to the complauuiut Lai Muhammad P. W. 1, 10,12 days before the raid and recovery of tainted money from the appellant, the demand was made hv the appellant for the payment of Rs, 200 as illegal gratification for the finalization of the sanction of Leave Preparatory to Retirement. The complainant allegedly paid Rs. 100, and promised to pay the remaining Rs, 100 on 27-1-1982. 4. On 27-1-1982 the complainant Lai Muhammad appraised Martial Law authorities with regard to his harassment, and the demand of illegal gratification by the appellant. The grievance of the complainant was referred to the Anti-Corruption Establishment at Faisalabad . Rana Amaaullah P. W. 4 an Inspector Police, in the above establishment, produced the complainant before Ch. Muhammad Ashraf, P. W. 3 a Magistrate at Faisalabad . A written intimation Exh. PB/1 containing the complaint against the appellant was referred to the Assistant Commissioner, Faislabad. who deputed Ch. Muhammad Ashraf P, W. 3, a Magistrate to super­ vise the raid. 5. After completing the usual formalities a raiding party consisting of Aman-ullah P. W. 4 and Major Muhammad Hussain an Army Officer in the office of SMLA, Faisalabad, and Muhammad Hussain a Foot-Cons­ table was formed. On 28th February. 192 the raiding party proceeded to the office of the District Education Officer, situated in Mai-Dhe Jhuggi Faisalabad . 6. According to the prosecution versions, the compla nant entered the office of the appellant, and after a little while, the cortplainant and the appellant both came out, and proceeded to the nearby tea stall. The complainant in view of the raiding party, passed the tainted currency note of Ks. SOO which was accepted by the appellant, and the same was put by him the pocket of his shirt. In the meanwhile the raiding party reached there, and recovered the tainted currency note. The appellant soon there­ after made statement Exh. P. F. The appellant thereafter was sent up to face his trial on a charge under Section 161, P. P. C. 7. At the trial the prosecution gave up Major Muhammad Hussain. and Muhammad Hussain Foot-Constable as unnecessary, and relied upon the statement of the Complainant P. W 1 and P W. 3 Ch. Muhammad Ashraf, a Magistrate who supervised the raid, and who saw the passing of the tainted currency note. Rana Aman-ullah, Inspector Police Anti- Corruption appeared as P. W. 4 at the trial, who also had seen the passing of the tainted currency note, and had witnessed the recovery »f the same from the appellant. The prosecution had also cited one Muhammad Tufail, the Superintendent in the office of District Education Officer, Faisalabad as prosecution witness, but had given him up, as an un­ necessary. The learned trial Judge summoned him as a Court witness, 8. The appellant denied the allegations as disclosed by the prosecu­ tion evidence in his statement recorded under Section 342. Cr. P. C. The appellant further stated that a colleague of his namely Zafar Ah a Clerk had been promoted, and to celebrate promotion, the appellant had tu arrange a tea party on behalf of the office. The appellant further stated. that in the morning of tbe day cf raid, he had given Rs. 100 to the com- ; plainant for the purchase of sweets from LudMyana Sweets Shop. According to the appellant he had done so. because the owner of Ludhiyana Sweets Shop like the complainant hailed from Ludhiyana, and both were good fricmU. \ccordinrr to the appellant, the complainant promised to bring the sweets, but he came back and returned him Rs. 100 and regretted his inability. b\ folding his both hands to bring the sweets. According to the appellant, the amount paid by him was returned by the complainant, which was recovered from his possession by P, W. 3 Muhammad Ashraf, Magistrate. 9. Besides this plea, the appellant further stated, that witnesses had deposed against b:m under the influence of Martial Law authorities. The appear.: also stated, that since be had raised certain \aii.i objections, in the case ;f the complainant, With regard to the sanct.onini! of Leave Preparatory to Retirement, and because the disposal of objections took some time, the complainant had manoeuvred the registration of a false ca=e against h:m. 10. In his defence the appellant produced Ghulam Sarwar his col­ league who appeared as D. W. 1 to produce certain documents, and he also supported the defence plea with regard to the tea party. 11. The learned trial Judge discarded the plea raised by the appel­ lant, and be!;evmg the prosecution evidence as true, convicted the appel­ lant. 12. The learned counsel for the appellant has vehemently argued, that me statements of P, W. 3 end P. W. 4 are of uo avail to the prosecu­ tion, inasmuch as, since both had not heard the conversation, between the compla.nant and the appellant, therefore these statements cannot be used to corroborate the complainant who was a decoy witness. It was also argued that on the oasss of un-corroborated testimony o'"he complainant, the conviction cannot be recorded, 13. The learned counsel cited the case reported us Emperor r. Anwar All (AIR 1948 Lah 12). To determine this crucial question, it is necessary to consider with- exactitude the category in which, a complainant in trap case^ Acuidfali. Essentially the complainant in such a like cases Jays inferm.iiion, with regard to the illegal demand to receive illegal gratifica­ tion, and is then becomes a decoy witness, because such witness allures, entraps, or lures into a trap, a person who demands such illegal gratifica­ tion, for being apprehended by the law enforcing agency. Only such wit­ ness has the exclusive knowledge, with regard to the demand of illegal gratification, that being so, can such witness be term as an accomplice. The term accomplice has not been defined in the Criminal Procedure Code. One can only seek help from the perusal of Section 337, P, P. C. and Section 201, P. P. C. The heading of the former Section is "Tender of pardon to accomplice" and the aforesaid provision envisages, the grant of pardon with a view to obtain the evidence of any person, supposed to have been directly or indirectly concerned in, or privy to the offence, on the condition of his making the full and true disclosure of the whole of the circumstances, within his knowledge relating to the offence, and to every other person concerned whether as principle or abettor hi the commission thereof. The perusal of Section 337 clearly indicate that an accomplice must be a conscious participator in the crime about which he is required to give evidence. The perusal of Section 201, P. P C. makes a person liable if be had the knowledge, or had reasons to believe that an offence been committed, and that he had taken steps to do away with the evidence, with the intention of screening the offender from legal punish­ ment, or with that intention, he lays information which he knows or believes to be false. It is thus clear that the guilty intention and know­ ledge, has been made as essential ingredient of the offence made punishable under Section 201, P. P. C. Without further going into details, an accom­ plice is a guiltv associate, or partner in crime, or who in some way or the other whether before, during or after the commission of the offence, is consciously connected with the offence, or who admits that he had a hand m the offence. In other words accomplice is a person involved in the criminal act done by his associate, and on account of the presence of Mens-Rea and his participation in the crime can be tried alongwith his associates. Judged in the light of above discussion, it is thus clear that a person who cannot be charged, on account of the absence of Mens Rea cannot be held to be an accomplice. Applying the criteria referred to above, it is to be seen whether a decoy witness in the bribe case is an accomplice. In my humble view the decoy witness would not be an accomplice in stricto senso, because in a way he is rendering usefuliservice, by laying such information with the law enforcing agency, for upholding the supermacy of law. The matter does not end here, inasmuch as, as expressed by this Court in the case reported Emperor v. Anwar AH (AIR 1948 Lah. 72) the possibility cannot be ruled out, for an attempt on the part of such a decoy witness, to plant the tainted currency on a person for personal vendetta, and that is why in the reported case, the emphasis has been laid on the necessity on the part of the prosecution, to adduce evi­ dence with regard to the hearing of conversation, between decoy witness, and the accused. It is further important to note, that in each and every case, the evidence with regard to the conversation, may not be possible to be produced, before the court, because, sight cannot be lost of those cases, where the hearing of such conversation, may not be possible, on account of variety of reasons, or due to the understanding having already been arrived at, in pursuance of the demand for illegal gratification, and accep­ tance thereof. In the case of Emperor v. Anwar AU (AIR 1948 Lah. 72), the learned Judges had laid emphasis on the necessity of hearing the conversa­tion, between the decoy witness, and the accused, because in the said case, allegedly the bribe was received on Lahore Railway Station Platform. That is why, the learned Judges obs;rved, that on such a busy place, it was noj difficult for the prosecution to adduce the evidence as to the conversation. On this aspect of the case, suffice it would be to mention, that the pro­ duction or non-production of evidence, as to the conversation, on the part of the prosecution, and its effect in relation to the fact of the prosecution lease woud rest upon the facts and circumstance of each case. 14. Adverting to the question of corroboration I would hold that in the case of the decoy witnesses, the golden rule to seek corroboration is a sin qua-non for the conviction. In this regard though as discussed above, strictly speaking a decoy witness is not an accomplice, but yet the rule of law laid down for judging the creditability of the testimony of an accomp­ lice in Section 133 of the Evidence Act, read with Illustration (b) to Section 114 of the Evidence Act, would be strictly applicable. In this regard the theory of double test for the appraisal of the evidence of decoy witness, would be fully applicable. After having gone through the case law on the subject reported as Balmok and others v. Emperor (AIR 1915 Lah, 16), Cfaatru Malik v. Emperor (AIR 1928 Lah. 681) and Major Egbersay v. The State of Bombay (AIR 1961 SC l?62j and Dr. Muhammad Bashir v. The State (PLD 1967 SC 447), I am of the view that the crieteria and guiding principle on this subject, was most eleborately laid down by the Supresne Court of Pakistan in Dr Muhammad Bashir v. The State (PLD 1967 SC 447) and respectfully following the dictum reproduced hereunder I would hold that the rule of law laid down in these cases, is fully applicable in the case of decoy witness. In the case of Dr. Muhammad Bashir v. The State (PLD 196" SC 447). The following rule of law was laid down :— "As a rule of prudence, which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of au approver who is a self-confessed criminal having betrayed his for­ mer associates under the temptation of saving his own skin. Suf- ;enng from this stigma and marked depravity of character, an ap­ prover's evidence cannot be viewed, without natural reaction of distrust and incredulity. His evidence must first be tested on its basic probabilities or improbabilities like the evidence of any other witness, and more suspicious credentials, His evidence needs corroboration for the simple reason that it cannot be accepted without mental resenation and distrust, and it must, therefore, gather support from uther sources to induce faith in its veracity. The corroboration, which is, thus, needed must confirm in material particulars not that the crime has been committed, as alleged by the approver, but also that the accused concerned has, or have, committed it. The type of corroboration needed must differ with different cases, but such corroboration, although not required to be adequate and sufficient by itself to prove the charge, must tend to show a strong link between the crime and its perpetrator?, as alleged by the approver". Respectfully adoption of the above quoted rule of law, it is further neces­ sary to mention, that as laid down by Supreme Court in the case reported . as Nuir >. The State (PLD 1962 S. C. 269) that corroborative evidence! does not necessarily means, evidence through spoken words, but it mayj£ consist of any such circumstance, which tends to connect the accused withj the crime. 15. Applying the above criteria, ample corroboration of the state­ ment of the decoy witness the complainant, is available on the record of this case. The complainant is a Physical Instructor in a School, and had applied for obtaining Leave Preparatory to Retirement. The circumstances clearly prove that the appellant, as a dealing official in the capacity of Pension Clerk, was creating obstruction in the sanction of such leave. The demand of illegal gratification, was fulfilled in part, and the appellant knowing fully well, had to accept part payment j e, the remaining amount tof illegal gratification amounting to Rs. 100/- on 27-2-198/ i.e. the day on which the leave was sanctioned, and on the same day the case had been sen to the Despatch Section, for intimation be sent to the complainant. The complainant instead of paying the illegal gratification on the said day i.e. 27-8-1982, brought the matter into the notice of law enforcing agency, and on the next day, the tainted money was passed an recovered from the appellant. Another corroborative piece of evidence is that occording, to the evidence on record, after the passage of the tainted currency, the complainant folded his hand before the appellant. It clearly shows that the complainant desired not to be further put of an harrassed on one pretext or the other. It is further important to note that the sanction of leave on 27-2-1982 was not known to the complainant, otherwise after such sanction, the question of payment of the remaining portion of illegal gratification would not at all have arisen, 16. Another important aspect of the case, is the raising of presump­ tion of law, as enjoined by Section 4 of the Prevention of Corruption Act, 1947. Under the said provision, unless contrary is proved, the Court has to draw the presumption, that the appellant accepted, or obtained illegal gratification, as a motive or reward, as is mentioned in Section 161 P. P. C. The appellant to rebut the such presump­ tion, and also by way of defence plea, introduced in his statement recorded under Section 342 Cr. P. C. the story of arranging a tea party, and the purchase of sweets by the complainant, for which the appellant paid Rs. 100/- to the complainant. I need not dillate upon it, because such plea is most unconvincing and un-natural. Another cir­ cumstance justifying, the raising of said presumption, is available on the record, in the form of the statement of the appellant, which he made beiore P. W. 3 the Magistrate, soon-after the raid and recovery. In the afore­ said statement Exh. PF, the appellant admitted to have obtained tainted currency note, for getting the cause of the appellant processed and cleared from the Account Section. Per statement of the appellant, «he said amount was paid to him by complainant, to entertain the staff in the Account Section. When confronted with this aspect, the learned counsel for the appellant stressed, that the said statement Exh. PF could not be taken into consideration, because the said statement was not put to the appellant in his examination under Section 342 Cr. P. C. The learned counsel placed reliance upon Guizar Ahmad v. The State (Crl. L, J. 1975 1207). I am afraid that the contention of the learned counsel is untenable, because the learned trial Judge did not proceed, to record the conviction, on the basis of the variance between the statement of Exh, PF, and the one recorded under Section 342 Cr. P. C. 17. The learned counsel for the appellant contended, that even this Court, cannot look-into the statement of Exh. PF because of the aforesaid reasons. It is important to note that the appellant was represented by a counsel, the evidence was led in his presence, and Magistrate P. W. 3 deposed, about the recording of the statement of the appellant Exh. PF soon after the raid and recovery. The appellant had cross-examined all the witnesses including the Magistrate at length. 1 fail to understand as to wrhy the statement of appellant Exh. PF cannot be looked into by this Cout. The inadequacy of the examination, or defect therein cannot vitiate the judgment nor can always b& held fatal to the prosecution case. The mere possibility that prejudice was caused, is not enough. The Appellant has to satisfy this Court, that in fact prejudice was caused to him, on account of failure to confront him with his statement Exh. PF in his examination under Section 342 Cr. P. C. 18. In support of my view I would respectfully rely upon the rule of laid down in Abdul Wahab v. The State (PLD 1935 FC 88), Ibrahim Bbak another v. The Crown (PLD 1955 FC 113), Ynfciilj y. The Crown (PJL.O 1956 F.C. 143), Sber Jbang •-. Emperor (AIR 1931 Lab. 178), Md./Son&far Ali v. The State( SCMR !969 P. 461), Allah Dad and 2 others v. The State (PLJ 1978 S.C. 41) and Salehon and another v. The State (SCMR 1971 P. 260). 19. Be that as it may, this Court can look-into the statement Exh. PF. In my view, no prejudice was caused, to the appellant, because the trial Court did not consider Exh. PF as the sole basis for recording conviction In my view. Exh. PF, read with the statement of the appellant recordedl under Section 342 Cr. P. C. can be taken into consideration, for raisingjtf presumption of law under Section 4 of the Prevention of Corruption Act,/ and the appellant has failed to rebut it. 20. For the foregoing reasons, this appeal must fail and is hereby rejected. (Aq. By.) Appeal rejected.

PLJ 1984 Cr PLJ 1984 Cr. C. (Quetta) 507 Present : MUFTAKHIRUDDIN, J NASIR MAHMOOD KHAN—Applicant versus THE STATE—Respondent Criminal Bail Application No. 30/84, heard on 12-8-1984 (i) Bail-

Grant of—Discretion — Exercise of— Heinousness of offence- Effect of—Held : Bail being never refused as punishment and there being also no legal or moral compulsion to kesp person in jail, mere heinousness of offence not to be sufficient to take away discretion of Court to grant bai!—Criminal Procedure Code (V of 1898)—Ss 497 & 498, Pakistan Penal Code (XLV of I860)—S. 317 & Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)—S 12 [P. 509]fl (ii) Criminal Procedure Code (V of 1898) —

Ss. 497 & 498 read with Pakistan Penal Code (XLV of I860)—S. 377 & Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) —S 12—Sodomy—Offence of—Bail—Grant of—Entire case against applicant resting as statement of alleged victim —Such victim giving no explanation for delay in recording FIR—Medical evidence already destroyed—Genuineness of Photographs produced by prosecution yet to be established—Other accused equally charged with commission of offence already allowed bail by Additional Sessions Judge—Applicant also not abusing concession of bail allowed to him during four montbs—Cba)laa though submitted, no prosecution wrtness yet exam­ ined—Held : Applicant not to be committed to custody and bail granted to be maintained in circumstances. fP, 509]^ & C Mr. Khalid Malik, Advocate for Applicant. Mr. Munawar Ahmed Mirza. Advocate General for State. Dates of hearing : 9 & 12-8-1984. JUDGMENT By my older dated 10-4-1984 1 had directed the release of Nasir Mafamood son of Abdul Hamid on bail in the sura of Rs. 5,000/« with one surety and p.r, in the like amount which he had furnished to the satisfac­ tion of the Registrar of this Court. The learned Advocate General being dissatisfied with my order bad approached the Supreme Court for leave to appeal and there had advanced the arguments that the alleged photographs of accused Nasir Mahmood with the victim and the confession of the accused were sufficient to disallow the application for bail but the Hon'ble Judges of the Supreme Court did not express themselves about the conten­ tions because the contentions raised in the Supreme Court were not pressed before me. the matter has therefore been remitted for decision afresh ac­ cording to law and thus I have again considered the arguments of the learned Advocate General and the counsel for the accused Nasir Mahmood. 2. Nasir Mahmood is accused of offences under Section 377 P.P.C. read with Section 12 of the Hudood Ordinance 1979 alongwith three others, two of them namely Kibria and Shakeei were arrested by the Police but enlarged on bail by the learned Additional Sessions Judge-II, Quetta and he refused to release the petitioner Nasir Mahmood though the allegations against all the accused were the same that they had committed sodomy against the will of the victim and forcibly one by one, The fourth person namely one Akhtar an orderly of an army officer in whose house the alleged offence was committed is left to be tried under the army rules and wa? Not even arrested. 3. The learned Advocate has repeated before me the arguments he had advanced before the Supreme Court and has shown the photographs on which he has relied. In one of them the alleged victim is all alone and is naked while in the other two the accused Nasir Mahmood is shown busy in the commission of the indecent act. (n one of the photographs the victim appears to be enjoying the act though the allegations in the F.I.R. is that he was forced against his will. Both the poses are distinct with each other and definitely pertain to two different occasions. The prosecution case is that Nasir Mahmood had indulged in the commission of the offence only once and that too when the other accused had done the act prior to him. The alleged confession of Nasir Mahmood recorded on 21-4-1984 has also been pressed and it has been vehemently argued by the learned Advocate General that these pieces of evidence are priina facie sufficient to make out a case against him. 4. The learned counsel for the accused has iepudiated the allegations and has urged the allegations are concocted and levelled at the instigations of the employer of the alleged victim after a week of the alleged incident while the victim himself did not complain about any incident and had it been so the place of incident being in the vicinity nf the police station Bijli Road the matter could have been reported then and there. It has been further submitted by the learned counsel that the accused was arrested on 15-3-1984, the alleged photographs through which the ignoble feat is demonstrated were also procured by the police the same day from persons other than the accused and not at his instance nor from a place on occupa­ tion of the accused but the alleged confession was obtained on 21-3-1984. ft has been alleged that the Magistrate who is alleged to have recorded the confession is easily accessable to the police and has been obliging the Police n the past. 5. The version of the prosecution and the contentions raised on behalf of the accused touch the merits of the case. T do not think it desirable at this stage to express myself on them nor it is appropriate at this stage to comment upon the merits or demerits of the case lest it my prejudice the case of the parties. The versions definitely require a thorough scrutiny but for the present bail application it is relevant to consider that the boy victim himself did not give any explanation for the delay in recording the F.I R. and it is significant that he was accompanied by his master, Lala Ishaq who was annoyed when he learnt about the incident not from the victim but from others Thus the medical evidence which could through light on the matter has been destroyed and no soil cloth piece was made available The pathology report does not help the prosecution. No eye­ witness is available and entire case of the prosecution rests on the statement of Mustafa/the alleged victim. How for he is worthy of credit is to be judged at the trial. It has yet to be established if the alleged photographs pertain to the day of occurrence and are genuine and not cameratrics. The allegation of the prosecution is that the accused alongwith three others had committed the offence once while the photographs show the victim in two poses. The other accused equally charged with the commission of the offence have been released on bail. Mere heinousness of the offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as punishment and there is no legal compulsion to keep £ person in jail. Ultimate conviction can repair the wrong caused by mis­ taken relief of bail but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately. 6. The learned Advocate General does not even complain that the accused/petitioner has abused the concession of bail granted to him during these four months. I am informed that the Challan has been submitted in court and the charges has been framed on 26-7-1984 to which the accused did not plead guilty. The prosecution witnesses were even summoned but could not be examined as the file was requisitioned by the Advocate General for preparing the matter in this Court. I am therefore not inclined for the reason shown above to commit the accused to custody. The request of the learned Advocate General in this behalf is therefore turned down and the order dated 10-4-1984 whereby the bail was granted to the accused Nasir Mahmood is maintained. (TQM) Order accordingly,

PLJ 1984 Cr PLJ 1984 Cr. C. (Karachi) 510 Present : Z. C. VALLIANI, J ABDUL WAHAB—Appellant versus THE STATE-Respondent Cr. Appl. No. 74 of 1983, decided on 13-11-1983. (i) Pakistan Penal Code (XLV of I860)— -—Ss. 302/34 & 323/34—Murder-Offence of—Evidence, appreciation of—Benefit of doubt—Ocular evidence doubtful and not reliable— Disputes between parties existing—Identification of accused/appel­ lant doubtful—No independent witness examined though available— Appellant having no motive against deceased—Recovery of blood­ stained hatchet not connecting appellant with commission of crime discarded—Statement of D. W. prima facie establishing plea of alibi and throwing doubt on prosecution case—Statement of D W. dis­ carded by trial Court not for cogent reasons—Prosecution, held failed to establish its case against appellant beyond reasonable doubt. [Pp. 513, 514]A, B, E&.F (ii) Criminal Trial— ~— Accused, identification of — Eye-witnesses' Statement of — Corroboration — Requirement of— P. W. identifying accused/ appellants from 100 paces on basis of two street lights admittedly 27 and 33 paces apart from vardot —Presence of street lights not mentioned in FIR—Occurrence taking place at about 5 a.rn,—Held : Identification of accused and alleged co-accused being doubtful, reliance not to be placed on such statement without independent corroboration. [Pp. 513 & 514]B (iii) Criminal Trial —

Evidence -Weak pieces of—Corroboration to each other—Both ocular evidence and recovery evidence requiring independent cor­ roboration and thus weak pieces of evidence—Held : One weak piece of evidence not to corroborate another weak piece of evidence. [Pp. 514 & 514]A & D (iv) Criminal Trial— -—Recovery, evidence ot'—Recovered hatchet stained with human blood—Chemical Examiner Report not specifying blood-stained side of hatchet—Held : Recovery of such hatchet, even if believed not to connect same with crime in question and not to be used as cor­ roborative piece of evidence against appellant. [F. 514j£ (t) Motive—

Corroborative value of—Held : Motive by itself not to be evidence; [P. 514]D Mr, Azizullah K. Sheikh, Advocate for Appellant. Mr- G. M. Warsi, Advocate for Respondent, Pate of hearing : 6-11-1983. JUDGMENT Appellant aboNenanied, being aggrieved by judgment dated 2-7-1983 of the learned Sessions Judge, Jacobabad, in Sessions Case No. 45 of 1979, by which appellant has been convicted under section 302/34 P. P. C, and sentenced - o suffer imprisonment for life and to pay fine of Rs. 1,000.'- or in default to suffer further R.I. for three months and also directed to pay Rs 2,000 • as compensation to legal heirs of the deceased or in default to suffer further R I. for six months and further he has been convicted under section ?2j 34 P. P. C. and sentenced to suffer R. I. for three months and to pay compensation of Rs. 400 - (o P. W. Muhammad Nawaz or in default to suffer further R. I. for three months, has filed the above appeal, • Ti the following facts and ground : Briefly the prosecution case according to the FIR lodged by complain­ ant Abdul Sattar on 13-1-1979 at 7-00 a.m. is. that on the same day early in the morning, he alongwsth his brother deceased Haq Nawaz and Mohammad Nawaz had left the house for their lands, near their village Garhi-Sabhayo by the side of grave-yatd of Lahore Baba for picking vege­ tables, alongwith P. W, Dost Muhammad Lashan, It is said that deceased Haq Nawaz was walking ahead of them and when at 5 a,m. they reached near their lands, they saw four persons emerging out of babul out of whom, he identified appellant Abdul Wahab armed \vah hatchet, his brother Abdu! Latif (brother-in.law of complainant), while the remaining two were not known to him. ie is said that appellant Abdai Wahab was armed with hatchet, while the remaining were armed with lathis, who after hurling challenges caused hatchet and lathi blows to deceased Haq Nawaz, on which P, \V. Muhammad Nawaz went forward to rescue, but was giv.n lathi blows. It is said that the complainant and P. W. Dost Muhammad also tried to reach there, but in the meantime all the assistants ran away towards north and then it was discovered, that the deceased Haq Nawaz svas King injured on the ground un-conscious with injuries on head and leg from which he \a> bleeding. P.W. Muhammad Nawaz had also injured on his left arms and leg with lathis. Then both the injured were brought to the police station, where the FIR was lodged. The motive as alleged in the FIR is, that both the brothers of the complainant were given injuries on account of previous dispute over matrimonial affairs. This FIR (Ex. 12) was initially registered for offences under sec­ tions 307, 324, 325 34 P. P. C. whereafter the injuries of both the injured were inspected under mashirnama (Ex. 6) and then they were referred to Civil Hospital, Jacobabad, for examination, treatment and certificate. However, while investigating officer Muhammad Usman, the then Addi­ tional S H.O. (Ex. 22} was making preparation to visit the scene of offence when, he received information vide (Ex. 23) from the hospital to the effect, that injured Haq Nawaz has died. Accordingly, he went to the Civil Hospital and saw the dead body in presence of mashirs and prepared such inquest report (Ex. 7), whereafter he handed over the dead body to P, C. Raheem Bux (Ex. 17) for the banding over the same to the Medical Officer for post-mortem examination and report. Then fae recorded statements of P. Ws. Muhammad Nawaz and Dost Muhammad and visited the vardat alongwith the mashirs and complainant which was within the ploughed land of Dost Muhammad Sabhayo , within village Garhi Sabhayo, by the side Quetta-Gariu Sabhuyo Road , from where he secured-blood stained earth and scaled it at the spot in presence of the mashirs. He also saw three street lights at the \ardat and prepared such mashirnama (Ex, 8). Since she appellant above named was police constable posted at P. P. Badani of police station Buxapur. as such permission to arrest him from Superinten­ dent of Poiicc was obtained and on the basis of same he was arrested on 14-1-1979, in presence of mashirs under mashirnama (Ex. 24). On 16-1-1979 while in custody, the appellant voluntarily led the police and the mashirs towards the boundary of grave-yard, from where the produced blood stained hatchet from the boundaries of graveyard, which was secured and sealed at the spot in presence of mashirs under mashirnama (Ex. 10. On 18-1-1979 the statements under section 164 Cr. P. C. of P. Ws. Dost Mohd. and Muhammad Nawaz were got recorded. The appellant was finally cballaned, before sending blood-stained earth and hatchet to the chemical Examiner, the report of which is positive, has beea produced as (Ex, 25), At the trial the charge fur offences under sections 302, 323/34 P. P. C. was framed and read over to the appellant, to which he pleaded not guilty and claimed to be tried. Accordingly the prosecution examined P. W. Abdul Nabi (Ex. 5), who produced the mashirnama of injuries (Ex. 6), iuquest report (Ex. 7), and the mashirnama of vardat (Ex, 8), P. W. Hazoor Bux (Ex. 9) who pro­ duced the mashirnama of securing of blood-stained hatchet (Ex. 10), com­ plainant Abdul Sattar (Ex. 11) who produced the FIR at (Ex. 12), P.W. Muhammad Nawaz (Ex. 13), who produced his 164 Cr. P. C. statement at (Ex. 14). P.W. Dost Muhammad (Ex. 15), who produced his 164 Cr. P. C, statement at (Ex. 16) P. W. Rahiro Bax corpse bearer at (Ex 17), P. W. Doctor Jaichand (Ex. 19) who produced the post-mortem report at (Ex. 20) and the injury report at (Ex 21), P. W. Mnhammad Usman the investiga ing officer at (Ex. 22) who produced the letter of Medical Officer (Ex. 23), the mrshirnama of arrest of appellant (Ex. 24) and the report of Chemical Examiner at (Ex. 25), and P. W. Qadir Bux the Tapedar (Ex 26) who produced the sketch at (Ex. 27). Vide (Ex, 28) the Seamed DPP dosed he prosecution case. At (Ex. 29) the statement under section 342 Cr. P, C. of the appellant was recorded, whereby he denied the prosecution case stating, that he has been falsely implicated. He also produced the certified copy of affidavit (Ex. 30) sworn by nun in the Court of learned Additional Sessions Judge, Kandhkot. the photo-stat of entry of station diary of P. P, Badani (Ex 31) dated 11-1-1979 to the effect that the process for execution was handed over to him and the photo-stat entry dated 13-1-1979 (Ex. 32) to the effect, tuat he submitted the report in the Court of Additional Sessions Judge, Kandh­kot. regarding service of process. In defence, he examined P. W. Muhammad Khan, head-constable, who was head constable incharge of P.P. Badani on 11-1-1979 and 13-1-1979, who produced entries of roznamcha (Ex. 34) = (Ex. 31) and (Ex. 35) = (Ex. 32). The learnrd trial court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as herein­before mentioned, and consequently appellant has filed the aibove appeal, on the grounds mentioned in memo, of appeal The learned advocate f'-T appellant in support of the above appeal submitted as under ,-- (a) Motive for alleged offence i>> not convincing. (b~] Appellant was alleged to be armed with hatchet, but the same was not used according to medical evidence and consequently P. Ws. changed their statements, before the learned trial court and as such "no reliance can be placed on their statements, without inde­ pendent corrpboration, which is not at ail available, as learned trial court rejected aileged recoveries from the appellant, (c) It was dark night and as such identification of appellant on basis of two electric poles at distance of 27 and 33 paces, by P. Ws, Dost Mohammad from 100 paces was not possible and as such no reliance can be placed on his evidence, as he also closely connect­ ed with complainant's party. (</) Presence of P. W. 4 is also doubtful, as simple injuries aileged to have been received by him, could be self-inflicted and on account of enmity between the parties, on account of Abdul Latif abscond­ ing accused, appellant, who is brother of the said Abdul Latif, has been falsely involved. (e) Statement of defence witnesses rejected without cogent reasons. In support the above contentions, the learned counsel for the appellant relied upon cases reported in PLD 1953 F.C. 93, 19S3 Pak. Cr, L. J. 1246, PU1978Cr. C. (Karachi) 101, PLD 1964 Kar. 275, PLJ 19J8 Cr. C. (Karachi) 470, 1968 Pak. Cr. L. J, 1077, 1983 Pak, Cr. L. J. 1227 and 1969 Pak. Cr. L. J. 815 and submitted that prosecution hac failed to establish its case beyond reasonable doubt. The learned advocate appearing for the State on the other hand sub­ mitted, that though recoveries were doubtful and motive flimsy, but still on the basis of statements of P, W. 4 and 5, prosecution has established its case against the appellant beyond reasonable doubt. I bave carefully considered the above submissions made by the learned advocates before me and have gone through the B, & P. of the learned trial court and impugned judgment and cases cited by the learned advocate for the appellant. It was alleged in F.I.R., that present appellant was armed with hatchet and caused injuries. However before the learned trial court, in view of medical evidence that deceased had no hatchet injurie, P.Ws. changed or twisted their statements by saying that appellant used off side of the hatchtt. This fact was not at all mentioned in F.l.R. It is clear from F.l.R. and statements of P.Ws., that there existed disputes betsveen both the parties and as such statement of P.W. Abdul Sattar (complainant) a^ real brother of the deceased and PAV. Mohammad Nawaz (injured), who is also brother of deceased required independen- corroboration. For such corroboration, prosecution has relied upon the statement of P.W,, Dost Muhammnd and alleged recovery of hatchet from the prossession of appellant. P.W. Dost Muhammad in his statement before the learnedig trial court stated, that he and complainant saw the incident from 100J naces. It is admitted position that incident took place at about 5.00 a.m. on 13-1-1979, and identification is alleged on the basis of two street lights, which were admittedly 27 and 33 paces apart from vardai and as such ndentification of appellant of appellant and other alleged co-accused by ?.W. Dost Muhammad and complainant is doubtful and as such no reliance can be placed on their statements, without independent corroboration, as presence of street lights were not mentioned in F.I.R. at all, and consequently statement of P.W Dost Muhammad, which itself requires ^corroboration cannot corroborate siatements of either complainant and/or P W. Muhammad Nawaz, in my opinion, as one weak piece of evidence cannot corroborate another weak piece of evidence, Motive by itself cannot be used as corroborative piece of evidence, in my opinion. However in present case, present appellant had no motive against deceased. Motive if any was available to absconding co-accused Abdul Latif, brother of present appellant, according to statement of P W. 4 Muhammad Nawaz. It may further be .luted, that according to Ext. 25 Chemical Examiner Report, which shows that there was human blood on hatchet, without specifying whether the said blood was en blade or handle. Presumably on blade, but according to ail P.Ws., appellant had not used sharp side of hatchet. Hence in my opinion, recovery of such hatchet, even if it is believed, does n-~>t connect the said hatchet with crime in question and cannot be used as corroborative piece of evidence against present appellant. Even learned trial court discarded said recovery against present appellant for cogent rcav.«;« In addition to this appellant by statement of D.W. Muhammad K.h.ui. prima facie has established his alibi, which also throws jo iM ,n nrosecution case against the present appdiant. Reasons given •5V learned trial court to discard statement uf u W are not cogent, in my opinion, In v.ew of my above conclusions and flndings v in my opinion, prosecut.on has failed to establish its case against above named appellant, beyond reasonable doubt. Therefore I allow the above appeal and set aside conviction of the appellant ana sentences awarded to him by impugned judgment and acquit -. him by giving benefit of doubt and direct that appellant be released forth­ with, if not required in any other case. (Aq. By.) Appeal allowed,

PLJ 1984 Cr PLJ 1984 Cr. C. (Lahore) 514 (DB) Present : GHULAM MUjAODID MIR/.A & 1JAZ NISAR, JJ MUHAMMAD ASGHAR ALI & 5 Others—Appellants Versus THE STATE-Respondent Cr. Appl. No. 92/1981 & Cr. Ref. No. 52/1981, decided on 25-2-1984 (i) Pakistan Penal Code (XLV of I860)— ——S 149—Unlawful assembly—Sudden fight by members ct—Liabi­ lity for—Sudden flare up between nartie«. kad ; ng ic free fight n< nvhiw 1 ' 1 both sides receiving injuries—Held ; Each person participating in fight to be responsible for his own individual act. [P. 520]A «ii) Pakistan Penal Code (LV of I860)—

Ss. 148 & 149—Unlawful assembly—Common object of—Convic­ tion—Appellants not held to have formed unlawful assembly with common object of committing murder of deceased and for causing injuries to P W.—Conviction under section 148 P. P. C. set aside and Section :49 P. P. C. also held to have no application. fP. 520]B fill) Pakistan Penal Code (XLV of 1860)- -—-S. 302—Murder-—Off.'ttce of—Conviction for—Alteration of to that under S, 326—Both parlies in sudden Hare up. lending to free fight in which both parties receiving injuries—Requisittc intention or knowledge under S, 300 P. P. C., not present to mind of appellant (No. 3)-~-HeW ; Conviction of such appellant under S. 302 P.P.C, to he altered to that iirder S, 326 P, P. C, [P. 520]C Civ) Pakistan Penal Code (XLV of I860)—

-Ss, 325,149—Grievous hurt—Offence of —Conviction—Evidence, appreciation of-Both parties in sudden flare up leading to free fight in which both parties receiving injuries—Held ; It having not been established as to who caused grievous hurt to P. W.. conviction and sentence of appellants under S. 325/149 to set aside be. fP. 520]Z> Mian Mahmood Ali Kasoori, Mr. M. A. Rahman & Mr. M. A. Z«f»r. Advocates for Appellants, Kb. Shaukat Ali. Advocate for State. Dates of hearing : 21 & 25-2-1984. JUDGMENT Ijaz Nisar, J.—Naseer Ahmad (25), Mohammad Bashir (27) and Asghar Ali (34) sons of Edey Khan, Mushtaq Ahmad son of Sultan Khan, Khushi Muhammad son of Chan Khan (28) and Muhammad Nawaz son of Faiz Muhammad (32) have been convicted by the learned Additional Sessions Judge, Faisalabad on 31-1-1981 under sections 148, 323, 324 325 and 326/149 P. P. C. for the murder of Muhammad Aslam deceased and for causing to injuries to Muhammad Siddique, Bashir Ahmad, Mohammad Shafi and Shah Din P. Ws. and Muhammad Ramzan, Abad Ali, Muhammad Akbar and Zulfiqar (not produced) with knives and sticks on 30-3 1979 at 8 a.m. at bus stand of Chak No. 24/G.B. on Satiana/Jaranwala Road. Naseer Ahmad appellant has been sentenced to death and a fine of Rs. 2,000'- or in default to undergo further R. I. for 6 months. Asghar Ali, Mohammad Bashir, Mushtaq Ahmad, Muhammad Nawaz and Khushi Mohammad have been convicted under sections 326/149 P.P.C. and sentenced to two years R. I. and a fine of Rs. 1,000,'- each or in de­ fault to undergo further R ; I, for fi months The fine, if recovered was ordered to be paid to the legal heirs of the deceased. The accused have also been sentenced to one year's R, I. and a fine of Rs. 2.000/- each or in default to undergo further R.I. for 2 months under section 325/149 P. P. C. The fine, if recovered, was ordered to be paid to Muhammud Shaft P, W. All the accused have also been sentenced to one year's R. I. under section 32<».'149 P. P. C. They have further been sentenced to 6 moaths R. 1. under section 323/149 P/P.C. They may ha"c also been sentenced to one year's R, I. each under section 148 P. P. C 1. All the sentences of imprisonment were ordered to rvm con­ currently, 3. The appeal, the connected murder reference and the revision tiled by Mohammad Asghar appellant against the acquittal of complainant party from the charge under sections 148'341 ; ?23;l49 P. P, C. in the cross case shall be disposed of by this order. 4. On the day preceding the day of occurrence at about 3/4 p, rn. Muhammad Siddique P. W, 10 boarded Bus No. 1715/FDA from Jaranwala Bus Stand. Bashir Ahmad appellant was driver of the bus while Mushtaq Ahmad appellant was its "conductor. When the bus started and had covered a distance of one square, Mushtaq appellant asked Muhammad Siddique P. W. to vacate the seat occupied by him to which he refused, upon which Muhammad Mushtaq slapped him. Muhammad Siddique caught hold of the shirt of Mushtaq Ahmad. In the meantime. Bashir Ahmad appellant stopped the bus and started giving fist blows to Muhammad Siddique but the passengers intervened and rescued him. Bashir Ahmad and Mushtaq appellant pushed Muhammad Siddique P, W. out of the bus. The latter narrated the incident to his brother Muhammad Aslam deceased who said that he would raised the protest to Bashir Ahmad Mushtaq in that behalf. On the following day i.e. 30-3-1979 at 8 a. m. Muhammad Siddique P.W. 10, Muhammad Aslam deceased, Bashir Ahmad P,W. 11 and Zulifqar not produced) went to the bus stand of Chak No. 24/G B. for the said pur­ pose. In the meantime bus No. 1715/FDA driven by AsgbarAli appellant came there. Mohammad Siddique P, W. and his brothers gave, a signal to the driver as a result of which he stopped the bus. In the meantime another bus No. 2627,. FDA came from Satiana side and stopped there. Mushtaq Ahmad and Mohammad Nawaz appellants got down from it and declared that none be spared. Asghar Ali, Naseer Ahmad, Kbushi Mohammad and Bashir Ahmad got down from bus No. 1715/FDA, Mushtaq Ahmad and Khushi Mohammad were armed with Sotas while Mohammad Nawaz, Asghar Ali, Naseer Ahmad and Bashir Ahmad were armed with knives. Naseer appellant inflicted a knife blow in the abdomen of Mohammad Aslam deceased whereafter Asghar Ali appellant stabbed him at his right buttock. Thereafter all the appellants started causing injuries to the P. Ws, In the meantime, Mohammad Shafi. Bashir Ahmad son of AH Ahmad, Abad Ali, Mohammad Akbar and Mohammad Ramzan (not produced) came there on a Tonga driven by Shah Din P, W. 13 and tried to rescue the injured persons but the appellants also assaulted them. After causing injuries to the deceased and other persons, the appellants left by their respective buses. Mohammad Aslam was taken to the hospital in an unconscious state. After getting himself medically examined Mohammad Siddique ?. W. proceeded to P. S. Jaranwala where he lodged the F.I.R. Exh. P.Q with Mohammad Hussain Head-constable P. W. 3, on the same day at i 1 a.m. The distance between the spot and the police station, being l n 'mi!e$, 5. b. 1,, Mohammad Asghar took into possession blood-stained clothes of the injured P, Ws. He also took into possession blood-stained earth from the spot. He prepared injury statement Exh. P.N. and inquest report Exh, P.O. of Mohammad Aslam deceased. He arrested Mushtaq Ahmad and Asghar Ali appellants on 30-3-1979. Mushtaq Ahmad appel­ lant produced Sola P. 5 which he took into possession through memo. Exh. P U. As Asghar A!i appellant was bearing injuries on the person, the SI. got him medically examined Naseer Ahmad appellant produced knife P. 6 before him through Exh. P.Y. Bashir Ahmad produced knife P. 7 through Exb, P. W., Mohammad Nawaz produced knife P. 9 through memo. Exh. P. Y. and Khushi Mohammad produced Sola P. 8 through memo, Exh, P,X. The weapon? of the offence recovered fjom the appellants were not stained with blood. 6. Dr. Major Yousaf Ali P. W, 2 conducted autopsy on cue dead body of Mohammad Aslam deceased (35) on 31-1-19/9 at 10-50 a.m. and found the following injuries thereon. (I) A stab wound 5 cm x 3 cm . abdominal cavity. \n\ upper abdomen intestines were lying out, (I) A stab wound 5 era x 3 cm x 6 cm on the right buttock. (3) An incised wound 2$ cm x 1 2 cm \ skin deep on palm of ieft index finger. (4) An incised wound 5 cm x i 2 cm . skin on the palm of kit middle finger. (5) An incised wound 5 cm x 1/2 cm ; skin deep un the front of right knee joint. All the injuries were ante-uiortem caused by sharp-edged weapons. injury No. 1 was sufficient to cause death. Probable duratioa between injuries and death was 4 to 6 hours and that between death and post­ mortem examination about 24 hours. Exh. P.M. is the post-mortem report while Exh. P.M., 1 is the diagram of the injuries. 7. Dr. Khurshid Ahmad Khan P. W. 1 examined Bashir Ahsaad • P, W. 11 and found the following injuries on his person :— (1) An incised wound 5 cm x 2 cm x through and through, the space between middle and ring finger of ieft hand of its back (2) A contusion 8 x 5 cm on back of right buttock injury No. 1 was caused by a sharp-edged weapon while injury No. 2 with a blunt weapon. Both the injuries were simple in nature. Exh. P.B. is the medico-legal report. He also examined Mohammad Shaft P. W. 12 and found the following injuries on her person :— (1) A lacerated wound 6 x 2cm : scalp deep on top of head, left side. (2) A contused swelling 8 x 5 cm on inner side, left fore-arm, left ulna bone was fractured. Injury No. 1 was simple while injury No, 2 was grievous. Both the injuries were caused by blunt weapon Exh, P.C, is medico-legal report. He also examined Mohammad Siddiqae P. W. 10 on the same day and found the following injuries thereon :•— (1) A stab wound 4 x 1 x 5 cm on back of right buttock, (2) A superficial cut 5 x 1 cm on back of right buttock. The Chadar was torn. (3) A contused swelling 4 , 2 cm on the nose, (4) An abrasion ! x 1 cm on left cheek. All the injuries were simple. Injuries Nos. 1 and 2 were caused by sharp-edged weapon while injuries Nos. 3 and 4 were caused with blunt weapon. Exh. P,F, is a medico-legal report. On the same the doctor examined Shah Din P. W. 13 and found the following injuries on his persnn. (1) A lacerated wound 6 cm x 2 cm x scalp deep on left side of head. (2) A contused swelling 5,3 on cm on back of left fore-arm. (3) An abrasion 1 x 1 cm on back of left thumb. (4) A contused wound 5 x 2 cm on back of left chest. All the injuries were simple in nature and were caused with blunt weapon. Exh. P.G. is medico-legal report. He also examined Asghar Ali appellant at the instance of the police and found the following injuries on his person :— (1) A lacerated wound 1/2 x 12cm x skin deep on the left eye brow. (2) A contusion 4 cm x 3 cm on lower eye-lid on left eye. (3) A contusion 4 x 2 cm on left side of head. All the injuries were simple and were caused with blunt weapon. Exb. D.A, is medico-legal report. he also examined Abad Alt, Mohammad Ramzau, Mohammad Akbar, and Zulfiqar P, Ws. (not produced), 8. The appellants pleaded not guilty to the charge and denied the prosecution allegations. All the appellants except Khushi Mohammad and Mohammad Nawaz admitted that Mohammad Siddique P. W. had been asked to vacate the seat in the bus and on his refusal he was beaten and pushed out of the bus. The appellants slated that the complainant party was guilt\ of aggression. They, while arme-i with Sotas had assailed them and the passengers of both the buses gathered at the spot and in the melee some of the passengers caused injuries to Muhammad Aslam and other P. Ws. to defend them. Asghar Ali lodged a case immediately against Muhammad Siddique and others and that they had been falsely implicated by the complainant party on account of previous incident. 9. No evidence was called in defence. 10. Muhammad Siddique P. W. 12 and Shah Din P. W. 13 were examined as eye-witnesses of the occurrence. All of them are injured witnesses and they deposed about the occurrence. Muhammad Siddique P. W. 10 and Bashir Ahmad P. W. 11 are real brothers of Muhammad Aslam deceased. 11. Relying on the ocular testimony corroborated by the medical evidence and the motive, the trial Court convicted and sentenced the appellants as stated above. The recoveries of -weapons of offence were not believed because none of the weapons were found to be stained with blood. 12. Criticising the judgment, the learned counsel for the appellants has submitted that the prosecution has not come forward with the true story and have suppressed material facts going in favour of the ap­ pellants. He states that the prosecution is completely silent about the injuries of Asghar Ali appellant which were of the same duration. He further stated that the trial Court has not giver, proper consideration to the injuries suffered by Asghar Ali appellant. The fact that no blood was found in the house or on the road side where the houses had stopped throws a suspicion on the genuineness of the prosecution story, he adds. 13. Since the eye-witnesses namely, Muhammad Siddique, Bashir Ahmad, Muhammad Shafi and Shah Din bear injuries on their persons, therefore, their presence at the spot can not be doubted. But at the same time mere presence of injuries on the persons would not raise any presump­ tion that whatever they are telling, is the whole truth. The appellant?, have not denied the pushing out of Muhammad Siddique P. W. from the bus belonging to them after giving a beating to him on the day preceding the day of the occurrence. The version of the complainant party is that thev bad stopoed the bus driven by Asghar ASi appellant just for making a protest oc the incident taking place a day earlier and that m the meantime, another bus carue there from which Naseer Ahmad, Bashir, Asghar Ali and Klusr; M-jh-rnmud appellants got down. Protests in our, rustic Society re njt made ;n a cool and calm manner but in an aimospher charged w.th emotion and aoger. The complainant party because of the insult meted out i.; Sjdcique P, W. must ;be in rugh tamper, setting their teeth on edges against the appellants. Likewise the appellants who were made to stop in the way by the complainant party could also not be expected to be sober and sane, From the appellants side Asghar Ali was injured while from the complainants side the deceased and other persons received injuries. The age of the injuries suffered by Asghar Ali coincides with the time of occurrence and the injuries suffered by the complainant party. The eye-witnesses are completely silent about his injuries and have given no explanation at al! in this behalf. It will, therefore, be legitimate to believe that he did receive injuries during the same transaction. U is generally observed that when both the parties are injured they do not come out with the true story and it is common feature to minimise one's own part in the incident and in such a case the Court is competent to draw inference flowing from the evidence and circumstances about the origin of occurrence. The circumstances of the case lead to an irresistible conclu­ sion that there was sudden flare up between the parties leading to a free fight in which both sides received injuries. Thus each person participating in the fight would be responsible for his owa individnal act, 14. Since the appellants have not been held to have formed an un­ lawful assembly with the common object of committing the murder of Muhammad Aslam deceased and for causing injuries to the injured P, Ws.. their conviction under section 148 P, P. C. is set aside and section 149 P. P. C, will also have no application. 15. As from the circumstances discussed, above, the requisite intention or knowledge under section 300 P. P. C. is not proved to be present to the mind of Naseer Ahmad appellant we, would, therefore alter his conviction from section 302 P. P, C. to one under section 326 P. P. C. and sentence him to seven years R. I. and fine of Rs. JQ.OOO/- (Thirty thousand) or in default to under further R. I. for two years with benefit of section 382-B Cr. P. C. The amount of fine shall be paid to the legal heirs of the deceased as compensation. The conviction of Naseer Ahmad, Mohammad Bashir, Asghar AH and Mohammad Nawaz appellants under section 324 P. P. C. is maintained, while that of Mushtaq Ahmad and Khushi Mohammad is set aside. They are sentenced to the imprisonment already undergone by them. The conviction of Mushtaq Ahmad and Khushi Mohammad under section 323 P. P. C is maintained. They are sentenced to the period of im­ prisonment already undergone by them. However, the conviction of the other appellants is set aside, As it does not stand established as to who caused grievous hurt to Mohammad Shah'P. W. ) 2, therefore, the conviction and sentence of the lappellants under section325/149 P. P. C. is set aside. The death sentence of Naseer Ahmad is not confirmed. Mohammad Asghar, Muhammad Bashir, Mushtaq Ahmad, Khushi Muhammad and Mohammad Nawaz appellants who are on bail are dis­ charged from the bail bonds. 16. The revision filed by Asghar Ali fails because from the evidence it does not stand established as to which of the respondents caused injuries to biro- (Aq. By.) Order accordingly

PLJ 1984 FSC 31 PLJ 1984 FSC 31 (Original Jurisdiction) Present: AFTAB HUSSAIN, C.J, ALI HUSSAIN QAZILBASH, MUHAMMAD SIDDIQ & MALIK GHULAM ALI, JJ In re : Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) Shariat Suo Motu No. 291, decided on 2S-5-1983. (i) Constitution of Pakistan, 1973—

Art. 203-D—Federal Shariat Court—Original jurisdiction of—Re- pealed laws—£xamination of—Held : Any examination of repealed laws (by Federal Shariat Court) to be exercise in futility (particularly) because ot Constitution having provided for examination of existing laws and tun of those no longer in force. [P. 32] A (ii) Constitution of Pakistan, 1973—

Art. 203-D and Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)—Evacuee laws—Repeal of—Injunctions of Quran and Sunnah—Repugnancy to—Held : Object of evacuee property and displaced persons laws being to rehabilitate and settle displaced persons, such laws by their very nature not to be perma nent—Held further : Government having acted within scope of its • authority in repealing such laws, Act XIV of 1975 not in any way to be repugnant to Quran and Sunnah. [P, 32]5 Mr. Iftikhar Hussain Ch. Advocate for Federal Government. Date of hearing: 24-5-1983. ? ORDER

The Act repealed the following Acts and Regulations :— g -(») the Registration of Claims (Displaced Persons) Act, 1956 (Act III of 1956) . (») the Pakistan Rehabilitation Act, 1956. ' the Pakistan (Administration of Evacuee Property) Act, 1957. the Displaced Persons (Compensation and Rehabilitation) Act, 1958. l (v) the Displaced Persons (Land Settlement) Act, 1958. (v») the Scrutiny of Claims (Evacuee Property) Regulation, 1961 and (vh) the Price of Evacuee Property and Public Dues (Recovery) Regula­ tion, 1971. It is for this reason that none of these Acts were examined, any exami­ nation of the Laws which are not longer a part of the statute book would be an exercise in futility. Moreover the Constitution provides for the examination of existing laws and not of the laws which are no longer in' force. Objections were received from Mr. Asghar Ali and Raja Muhammad 1 drees Khan against the repealing Act. Mr. Asghar Ali has referred only to some fraudulent transfers which are beyond the scope of our examination and enquiry, Raja Muhammad Idrees says that except the first five laws referred to above which were according to the Quran and Sunnah, the Regulation of 1961 was against Sharia while the Regulation of 1971 was unnecessary. His objection is that the first 5 Laws should remain on the Statute Book and the continuance of the repealing Law which violates the objective of Sharig would amount to acting in a manner repugnant to the Quran and Sunnah. The objection is not sound since obviously the object of these laws was to rehabilitate and settle displaced persons. By their very nature these Laws could not be permanent. It was for the Government to consider whether the stage had reached for withdrawing them. The Government has, there­fore, acted within the scope of its authority by repealing them. The Act is not in any way repugnant to the Quran and Sunnah. (TQM) Order accordingly,

P L J 1984 FSC 48 P L J 1984 FSC 48 (Appellete Jurisdiction) Present: AFTAB RUSSIAN, CJ, & MALIK GHULAM A£I> J RIAZ HUSSAIN—Appellant versos THE STATE—Respondent Criminal Appeal No. 101/1 of 19S3, decided on Z-f-9-1983; (i) Muslim Family Laws Ordinance (VIII of 196I>- ——S. 7—Divorce—Completion of—Proceedings under S. 7 t«»t taken —Held: Relations of husband and wife to subsist (between parties). [P. 50] A <ll) Criminal Trial—

Cross-examination—Line of—Accused—Inference against—Counsel putting different questions from different angles of his own- Held : Unless each question! be shown to have been put under proper and specific instructions of accused party, no inference against accused to be drawn from merely line of cross-examination—Evidence Act (I of 1872)—S. J37. (P. 50] B («) Evidence Act (I of 1872)—

S. 137—See : Criminal Trial—Cross-examination. Mr. Faial ElaW Siddiqni, Advocate for Appellant. Mr. Mohammad Aslant U»s, Advocate for State. Dateef hearing: 24-9-1983. JUDGMENT e Aftab Hossain, Chief Justice.—RiazHussain, who is son of Maqboof Bibi, prosecutrix's father, maternal aunt, was sentenced by Mr. Nafeea- Ahmad Bajwa. Sessions Judges, Jhang, by his order dated 28-6-1983 under Section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 15 years'R. I. and 30 stripes. The father of Riaz Hussain namely, Liaqat AH and his paternal grand mother, namely, Hakim Bibi, who were also prosecuted, were acquitted. 2. The prosecution case is evident from the statement of Mat. Shamin Akhtar P. W. 1 that on the 10th April 1982, in the morning time, she went to case herself with Mat. Hakim Bibi (acquitted accused) who was staying. at her house since a day earlier. She found Liaqat Ali (acquitted accused)" and Riaz Hussain appellant who abducted here by force. Riaz Hussain took her to bis house and confined her in a room under threat to her life, for which reason she made no resistance. He also committed ztna-bil-Jabr with her. Later Muhammad Afzal Shah P. W. 2, Sharif Huisain P. W. 3- and Altaf Hussain P. W. 4 approached the accused party and she was entrused to them on the promise that the matter would not be reported to the Police. 3. After her release, the prosecutrix lodged the first information report on the 13th April, 1982 at 6-15 P.M. in Police Station Kotwali, Jhang, on the basis of which the above named three persons were tried by the Sessions Judge under Section 11 and also for commission or abetment of the offence under Section 10(3). 4. It was admitted by Mst. Shamim Akhtar P. W. 1 that she was: married to RiazHussain appellant, but according to her, she had not gone to his house, because the rukhsati had not been performed. It was put to-bar that she had been divorced after the registration of the above case, but she stated that the divorce had been effected prior to the abduction. It isfurther worthy of note that no reference to the nikah or divorce was eve . made either in the first information report or in the examination-in-chief. 5. The defence case is that the divorce was effected after the registra­ tion of the case which clearly was launched to obtain divorce. 6. Muhammad Afzal Shah P. W. 2 paternal uncle of Mst. Shamin Akhtar, Sharif Hussain P. W. 3, her maternal uncle, and Altaf Hussaia W, 4 another paternal uncle who are said to have gone to the house of : Hussain to fstch. MJ. Shamitn Akhtar P. W. 1, did not support the prosecution cass. Obviously it appears that the case was compromised ort aceouat of subsequent pronouncement of divorce. This fact appears to be clear from the concession made by Muhammad Afzal Shah P. W. 2 that •the divorce had taken" place after the registration of the case. This supports the defeace version. Shamim Akhtar was medically examined on the llth April I8S2, by lady doctor Ismat Pegum P. W, 7. It appears from hsr statement that the sexual inter-course by the appellant with Shamim Akhtar was a .recent affair, and she was not accustomed to it. She also found bruises on nthe breasts, thighs and chest. From this evidecce the learned Sessions Judge 4rew a conclusion that this was a case of Zina-bil-Jabf although if the •divorce was not complete and was not even effected before the sexual act, at would be neither zina nor Zina-biLJabr. He was misled by ibs medical report and had not considered that these bruises may have been affected due to brute handling of one's wife by the husband because it was no where the prosecution case that the prosecutrix had put up any resistance. On the •other hand, the theory of resistance it excluded in other matters by the Admission of the prosecutrix herself. 1. The moot question in this case was whether Mxt, Shsmim Akhtar ihad been divorced before the commission of the sexual intercourse with tier. We do not understand why ths learned Court below has failed to ttake note of the provisions of the Family Laws Ordinance, Section 7 of which Says down a procedure for completion of the divorce. It has been laid.down by this Court as well as by the Supreme Court of Pakistan that no divorce can be complete without following that procedure. In these circumstances, the finding about divorce is hardly a legal findings. If the iceedings under Section 7 of the Family Laws Ordinance are not taken, obviously, the relatsohship of husband and wife still subsists between Mil, Shamim Akhtar and Riaz Hussain. 9,' Even factually, it is not possible to say with any amount of <attainty, thai any divorce was pronounced before the commission of the •alleged offence. As stated above, the facts of the case show that the pronouncement must have been made after the registration of the case, -which satisfied the complainant party, and for this reason very close relative! of the prosecutrix, both from the father's side and mother's side, •did not support the prosecution case. This is further corroboration by th« Concession made by Mnhammad Afzal Shah P. W. 2 that the divorce took place after the registration of the case. 10. The learned Sessions Judge has made aoase omery^itions about <he line of cross-examination adopted by the learned co'unSel for the Appellant and drew an inference that it corroborated the story of commis­ sion of the offence. We are not aware of any such law w^er,ths;Uae of i cross-examination as such can prove the guilt of any person, The .learned counsel put different questions from different angles of their own and if U is not clear that all those questions had been put under proper and specific a instructions of the accused party, it is not possible to draw any inference against the accused from merely the line of cross-examination. The appdittni did not commit the oflEence of Zina-bil-Jabr His appeal is aceccpted, and his conviction and sentences are not aside. He shall be forthwith if not required in any other case. II. Copies of this judgment shall be sent to the learned Sessions .Judge, as well as to the Chief Justice of the Lahore High Court. {TQM) Appeal accepted.

P L J 1984 F S C 51 P L J 1984 F S C 51 (Appellate Jurisdiction) Present : B. G. N. KAZI & SYED MUFTI SHUJJAAT ALI, JJ Mst. NEHMAT BIBI— Appellant versus THE STATE— Respondent Criminal Appeal No. 87/1 of 1983, decided on 29-81983. XD Offence of Zlna (Enforcement of Hadood) Ordinance (VII of 1979)— — S, 10 read with Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)— S. 3 and Criminal Procedure Code (V of 1898)— S. 154 — Zina — Imputation . of— Investigations into — Effect or — Investigation started and action tafa in zina eace on information never signed by person giving it— Held : Imputation of zina being serious matter harming reputation and injuring feelings of person affected as also honour of family, starting of investigation without authentic and signed allegation of such imputation not only to be against law of procedure but "also to amount to circumvention of provisions of Ordinance. fPp. 52, 53 & 54]4 & F 411) Offence of Zlna (Enforcement of Hadood) ordinance (VII of 1979)— - S. 10— Z^a— Offence of— Conviction for— Wife (appellant) denying alle­ gation of Z/n« and clearly stating boy born to her from co-habitation with husband— Husband also stating to have visited wife after every four five months in her village— Witnesses not residents of locality and their testimony even otherwise not reliable— Held : Both wife and husband having made specific and forth right assertion regarding birth of child because of their co-habitation, conviction of wife hot to be sustained. [P. 53] fid C 1 <iii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— ^S; 10 read with Evidence Act (I of 1872)— S. 112— Zwa— Offence of — conviction for— Child -born during subsistence of valid marriage— Pre­ sumption regarding — No definite assertion regarding any specific person with whom wife committed zina made — Even father nor proved to have hot co-habitated with mother during period child conceived— Legal provisions with regard to presumption of legitimacy totally overlooked • by trial court— Held : Conviction of appellant not to be sustained. Mr. Mohammad Ilyas Siddiqni, Advocate for Appellant, Mr. Mnhaosmad Asian Uns, Advocate for State. JDate of hearing : 29-8-1983. B.G.N. Kazi, J.—Mi.'. Nehmat Bibi wife of Shamim Akhtar Jaajua Rajput who was tried by the Additional Sessions Judge, Rawalpindi on a charge of committing Zina, punishable under section 5(2) (a) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, (here-in-after referred to as the Ordinance), was convicted under section 10 (2) of the Ordinance and sentenced to 5 years' R I. and also to whipping numbering 10 stripes and to pay a fine of Rs. 1000/- or in default to suffer further R. I. for one year, has Sled instant appeal against the aforesaid conviction and sentence. The case of the prosecution briefly stated is as under ;— Muhammad Akhtar, brother of Shamim Akhtar, the husband of the appellant had sent by post an application addressed to SHO Police Station Murrec alleging that hii brother Shamim Akhtar had gone to Iran since abort four years and was consequently living separately front his wife and therefore, since his wife had conceived and was pregnant and was trying to abort child, she should be prevented from doing so and should be brought to took. On receipt of the application SI Murree handed it over to Muhammad Akram who was them posted as ASI. Muhammad Akram started investigation and sent the application to the Police Station through Foot Constable Muhammad Ashraf for formal registration of the FIR. On 11-4-1982 i.e. the very next day after the application was passed on to him for action he arrested the appellant and got her medically examined by Dr. Ghazala Naqvi, Registrar, Holy Family Hospital, Rawalpindi, who was then posted as WMO in that Hospital. Dr. Ghazala Naqvi on medical examination of the appellant was of the opinion that she was about 24 yean old and she was having pregnancy of about five months. It may be observen here that there were no names of witnesses mentioned in the application and, therefore, it is presumed that the SI made a roving enquiry in the case. The Police Officer states in his deposition that be got the case registered at the Police Station without making preliminary inquiry although the application had been received by post and did not bear any signature or any thumb impression thereon. He then recorded the state­ ment of Muhammad Akhtar who was supposed to have sent the applicacation 6 to S days after the registration of the case and the aforesaid wit­ness Muhammad Akhtar totally denied having submitted the application, He however, continued to investigate the case till 28-5-1982 and the Police Officer in his cross-examination has admitted that during the investigationhe had come to know that husband of the accused appellant was in prison in Iron. The Police Officer has not further explained as to which of the witnesses examined by him during the investigation had told him that the husband of the appellant was in prison in Iran. 2. At the very outset it is observed that under Section 17 of the Ordinance, unless expressly provided in the Ordinance, the provisions of the Code of Criminal Procedure 1898 apply mutatis mutandis in respect of case under the Ordinance. The provisions of Section 154 of the Code of Criminal Procedure, 1898 (Act No. 5 of 1898), therefore, apply to the case with regard to information in cognizance cases, and therefore, the •information whether reduced to writing or given orally to an officer in- , .{charge of Police Station, had to be signed by the person giving it and then ' jalonc the substance thereof had to be entered in the book required to be Jkept under that Section. It is therefore, apparent that the investigation was started and action taken without compliance with the mandatory! provisions of Section 154 aforesaid. 3. All these observations are being made at this stage as there was no material with the prosecution which could have been considered as suffi­ cient for sending up the accused appellant for trial. It may here be further observed that the only prosecution witnesses on the point of absence of Shamim Akhtar; husband of the appellant are Shama Roshan (PW—4), Said Muhammad (PW 5), Syed Hakam Shah (PW 6) and Muhammad Azad (PW7). All the four witnesses did not belong to the village Bun,. where the appellant resides. Shama Roshan belongs to village Dhal, Said Muhammad is the resident of village Bhamrot, Syed Hakam Shah also is the resident of village Bhamrot and Muhammad Azad belongs to village Bhandi. Ali these witnesses,.as it appears from the evidence given them, did not know any dates of coming and going of Shamim Akbtar from village Bun, and there was no documentary proof at all about whether he had actually gone to Iran or had been incarcerated there. The learned- Additional Sessions Judge in para 15 of his judgment, while discussing the evidence of these witnesses, observed that SI Muhammad Akram had admitted that there was no documentary evidence, which had beeni dispensed with because he was convinced during the investigation of the fact of the absence abroad of Shamim Akhtar. Needless to say that no other effort was made to secure the passport of Shamim Akhtar or any evidence which could be considered authentic and as already observed there is nothing in the testimony of the four witnesses named above who besides are not the residents of village Bun, which could be considered reliable for coming to conclusion that Shamim Akhtar could not have visited village Bun where his wife was staying or co-habited with her. Shamim Akhtar who was examined as witness has definitely stated that he had not gone to Iran but he had gone to Baluchistan for employment and after every 4/5 months he visited his wife in village Bun where she used to reside with her father. 4. The appellant in her statement before the Court denied the allegation about commission of zina and clearly stated that the boy was born to her from co-habitation with her husband. In view of the specific and forth-right assertion by the wife and husband that the child was born because of their co-habitation as husband and wife, there was no reason for the learned Additional Sessions Judge to consider that evidence recorded was sufficient for sustaining conviction of the appellant. 5. The legal provisions with regard to the presumption of legitimacy as given in Section 112 of the Evidence Act, 1872, were totally over-looked under which birth during marriage is considered as conclusive proof of legitimacy and specially since in the instant case there was no definite ^ assertion regarding any specific person with whom the appellant had committed zina and it had not been proved that during the time the child was conceived the father could not have cohabitated with the mother. 6. The very fact that application made to the SHO Murree was annonymous and not signed by PW 2 Muhammad Akhtar should have been sufficient warning to the investigating authority not to proceed with the inveitigation. It is further observed that the conclusions arrived by the learned Additional Sessions Judge about guilt of the appellant are based on the certain conjuctures as to why the husband who had been examined as Court witness, did not go |o the Jail, did not make application for bail etc. which to say the least should not have been made specially in view of the explanation made by Shamim Akhtar husband of the appellant who clearly stated that he was informed about the arrest of his wife through a letter 8 days after the arrest and that when he actually came back to Bun his wife had already been released on bail. 7. Under the circumstances stated above, the conviction by the (learned Additional Sessions Judge of appellant cannot be sustained. The appeal is accordingly accepted and the conviction and sentence of the appellant is set asside and the appellant is acquitted for want of evidence on the charge for the reasons already given. She is on bail and her bail bond shall stand cancelled. 8. Before concluding this judgment we feel it our duty to point out that imputation of zina is considered as a very serious matter as it harms the reputation and hurts the feelings of the person affected as also the honour of the family. Such false imputation is made punishable uttdsr the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. The starting of investigation without authentic and signed allegation of such imputation is therefore not only against the law of Procedure as already stated bat amounts of circumvention for the provisions of the aforesaid Ordinance, .(TQM) Appeal accepted.

PLJ 1984 PLJ 1984.FSC 54 (Appellete Jurisdiction) Present: AFTAB HUSSA1N, C.J., ALI HUSSAlN QAZILBASH, B. G. N v , KAZI , CH. MUHAMMAD SIDDIQ & MALIK GHULAM ALI, JJ Mst. NEK BAKHT—Appellant Versus THE STATE—Respondent Keference in Cr. App. Nos. 73/1, 74/1, & 106/1 of 1982, heard on 14-6-1983. Per Aftab Hossain, C.J. (B. G. N. Kazi, Muhammad Siddiq & Malik Ghulam AH, JJ concurring) <i) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)—

S. 14— Lion proceedings—Taking of, oath by wife—Effect of— Held : In case of lian proceedings being complete and wife also taking necessary oath, wife not to be acquitted forth with, but-^to^be 1 liable to tazir in case offence be proved by evidence. [P. '] £ <ii) Offence of Qazf (Eoforcment of Hadd) Ordinance XyflOfJ?79)~

S. 14 read with Offence of Zina (Enforcement of Hadood) Qrcfinance (VII of 1979)—S. 10—I/an—Procedure in—Hadd sentence—Award of Held : Judge being bound to take into consideration and act upon provisions of Offence of Zina (Enforcement of Hadood) Ordinance for purpose of awarding sentence of Hadd, in other matters too Ordinance to be applicable and questiou of acquittal also to be subject to provisions of S. 10 of Ordinance—Held further: Where Hadd punish­ ment not to be given, matter to be assumed to be covered by S. 10 of Ordinance and wife to be liable to tazir if sufficient evidence be avail­ able. [P. 59] C & D , (Hi) Islamic Law & Jurisprudence— — Hadd punishmeot — Insufficient evidence for imposition of— Effect of— Held : Where evidence- be insafficieat for imposition of Hadd paaishment sazir seetesce to be awarded if evidcae? be sufficient for infliction of each sentence. [P. 58] A Xiv) Islamic Law A Jurisprudence— —Hadood laws— Object of— Held : Accused not to go scot free but to be liable to tazir where conditions required for proof of offence punishable by hadd be not fulfilled but there be evidence of lesser degree. [P, 59j B Per Ali Hussaiit Qaxilbash, J : - Afadat v. State, PLD. 1982-FSC. 52, that in case of Lian by the husband and the wife both of them are liable to acquittal (the husband on the charge of qazf and the wife on the charge of zina) and the wife could no more be punished even in tazir, was correct. Reference dated 30th February, 1983 was necessitated because the learned counsel for the State argued before the Referring Bench that the wife can at most be acquitted of the charge of Hadd but she would still be liable to tazir in view of the mandatory provisions of Ordinance VII of 1979 which in its Section 10 provides that where inter-alia the evidence necessary for Hadd punish­ ment is not forthcoming and there is sufficient evidence for punishing the accused in tazir, he shall be so punished. 2. In the reference it is stated that this was a decision of the Court but we are of the view that it cannot be called decision of the Court but can only be given the status of the judgment of two Judges out of the Bench of four Judges since Karimullah Durrani, J and Zahoorul Haq, J favoured the above finding while Fir Muhammad Karam Shah Al-Azhari, J dissented from it and Maulana Ghulam Ali, J, reserved his opinion on this question which according to him did not arise as the appellants were entitled to acquittal on merits. In view of the fact that two out of four Judges did not agree with this finding, the proper course would have been to refer the matter to a fifth Judge but this would have been necessary if the appeal could not be decided without this being adjudicated upon. 3. In the case of Afadat, Karimullah Durrani, J relied upon the Shafi view on the interpretation of Q. 24 : 6-10 that in case of Lion by the wife not only the marriage is dissolved but the wife is also entitled to acquittal and Hadd sentence caanot be imposed upon her. 4. Pir Muhammad Karam Shah, J however, relied upon the Hanafi view which is also .reproduced by Allama Aloosi in Tafseer Roohul Maani that the words " v |jjj I V^ b-^-J " mean tfiat the punishment of imprison­ ment (i^c ; Habs) will be averted from her. The Hanafi view, therefore, is that it does not mean the aversion of the Hadd punishment but only of Habs ( u~- ) or imprisonment. 5. Before proceeding further it may be clarified that according to Shafei view if the husband takes oath as provided in the above verses, the sentence of qazf is averted from him and if the wife refuses to take oaths of Lian, she is liable to be punished in Hadd. The Hanafi opinion, however, is that in case of refusal of the wife to take the prescribed oaths the Hadd of qazf is certainly averted from the husband but the wife cannot be subjected to Hadd punishment because in tb.e absence of evidence .or confession the oath of the husband may create only a doubt that she has committed 1 the offence of z/«a and as such it is not sufficient evidence foe Hadd. In case of refusal to take oaths she will be imprisoned for an indefinite period till she agrees to take oaths or she confesses the commission of zina. 6. One important point which is to be considered is that Section 14 of the Qazf Ordinance was drafted on the basis of the Hanafi opinion that in case of refusal to take oaths the wife shall be imprisoned unless she agrees to go through the procedure of Lian or accept the husband's accusa­ tion as true. For a better appreciation of this point Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 is reproduced below :•— "14.—(1) When a husband accuses before a Court his wife who is muhsan within the meaning of section 5, of zina and the wife does not accept the accusation as true, the following procedure of Han shall apply, namely :— (0) the husband shall say upon oath before the Court; I swear by Allah Almighty and say 1 am surely truthful in my accusation of zina against my wife (name of wife)" and after be has said so four times, he shall say : ''Allah's curse be upon me if I am a liar in my accusation of zina against my wife (name of wife)" ; and (fr) the wife shall, in reply to the husband's statement made inaccordance with clause (a), say upon oath before the Court : "I swear by Allah the Almighty that my husband is surely a liar in his accusation of zina against me" ; and after she has said so four times, she shall say: "Allah's wrath be upon me if he is truthful in his accusation of zina against me". (2) When the procedure specified in subsection (1) has been completed, the Court shall pass an order dissolving the marriage ! between the husband and wife, which shall operate as a decreefor dissolution of marriage and no appeal shall lie against it. (3) Where the husband or the wife refuses to go through the procedure specified in subsection (1), he or, as the case may be r she shall be imprisoned until. (a) in the case of the husband, he has agreed to go through the aforesaid, procedure ; or (b) in the case of the wife, she has either agreed to go through the : aforesaid procedure or [accepted the husband's accusation as true. (4) A wife who has accepted the husband's accusation as true shall be awarded the punishment for the offence of zina liable to Hadd under the Offence of Zina (Enforcement of Hudood) ( Ordinance, 1979/' 7; ( ' Subrsection 3 (b) incorporates the Hanafi Ijtihad about imprison­ ment (which;' is tdzir). In these circumstances we wonder whether anj digres^bn^ from'the Hanafi view in matter of interpretation of the verse: about Lian could be possible and whether the adverse opinion of Imam Shafei could, be preferred. It may be stated that there is a difference of opinion on the poin whether tazir sentence can be averted on account of the Injunctipi "wlJiJI li fjJbj "The Hanafi view has already been reproduced that v'^ does not mean the Hadd punishment. But Ibn-e-Qudama is vciy spccifi •on the paint that from the language of the Quran it appears that tazir jpunishmem is not averted. Unfortunately our learned brother Karimuiiah Durrani, J, did not refer to that opinion given in Al-Mughni, Vol. VII fjage 404 th ough he referred to that book as well as the above page. From that page he merely made a reference to the opinirm of Imam Shafei that if 4he severer punishment of Hadd is averted there is on reason why the punish­ ment of tazir may not be averted. In this connection reference may be made to what Ibn-e-Qudama said on this point at two different places and ^which clinches the matter. A: page 404 he says that when the husband itakes the prescribad oaths they are substitute for evidence for averting the Madd for false accusuation because the Holy Prophet had said (to Hilal Jbn-e-Uinoiyya) l! -~>j& a' J» l; MV' 'either bring evidence or Hadd will be adtainistersd on your back'. He then referred to the cases in which the risoa until she agrees to take oath or accepts the husband's accusation a true. Similarly there is no provision in Section 14 that in case she take the oath ; she is liable to acquittal. In these circumstances when Section \ is completely silent on that point and sub-section (4) thereof refers to th •Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for awardin the Hadd punishment it would follow that if the Hadd punishment canm be given, the matter will be assumed to be covered by Section 1C< of th; , -Ordinance and she will be liable to tazir if sufficient evidence is available. 13. Our learned brother Karimullah Durrani, J, while holding il -wife liable to acquittal and acting upon the opinion of Imam Shafe» >o th respect has proceeded on the assumption that there is vacuum in Section which he could fill up by reference to the injunction in the Holy Qun But we find no uch vacuum siace white dealii with Section 14'of the Qazf Ordinance the Judge is bound for the purpo ; of awarding the sentence of Hadd to take into consideration and act upi the provision of Offence of Zina (Enforcemant of Hudood} Ordinance, 5 91 , It is & clear indication of the fact that in all other matters too tl , Ordinance shall be applicable and the question of acquittal would, therefo be subject to the provision of Section 10 of that Ordinance, 14. We are, therefore, of the view that i« ease the Lian proceed are complete and the wife also takes necessary oaths, she canaot acquitted forth-wsth and shall ba liable to tazir in ease I'aat offence proved by evidence. The reference is duly answered. These thre apsx . on merits shall be heard and decided by & Single or.Division Benet, as case may be. Ali Hossain Qazilbash, J.— This reference has been answered by the majority of the learned Judges of this Court and was placed before me for my approval and signature. I have carefully gone through the Judgment but with due respect to my learned brothers I do not find myself in agree ment with the findings arrived at. The reasons necessitating the reference have been given by the Hon'ble Chief Justice in his leading judgment and I have nothing to add r The question, however, whether the decision of this Court in the case of Afaadat etc., v. The State reported iu P L D 1982 FSC page 52 was by a majority or otherwise, I would with respect, without dialating in detail on the subject, submit that in all fairness the said decision was by the majority of the Judges of this Court and should have been treated as such. The sole matter before the Court is whether in the case of Lian by the husband and the wife, both are liable to acquittal, the husband of thecharge of Qazf and the wife of the charge of zina, and that the wife could no more be punished even in tazir. This proposition has been dealt with in a most elaborate manner in Surah Noor Ayats 6 to 10 (XXIV : 6 to 10) of the Holy Quran and the Tradition of the Holy Prophet (AS) reported by Ibn-e-Abbas reported in Sunnan Abu Daud Vol : II page 119 to 201. Before, however, adverting to the Quranic Injunctions and the Sunnab of the Holy Prophet (AS) a reference to Ayat No. 4 of Surah Noor is not only material but very relevant. And those who launch A charge against chaste women, And produce not four witnesses, (To support their allegation),— Flog them with eighty stripes ; And reject their evidence Even after : for such men Are wicked transgressors ; — This is known a punishment for £?az/. 5 As the tradition goes, after the revelation of the above quoted Ayat (XXIV : 4) people were confronted with a problem that in case a husband finds his wife committing adultery with another and is no way able to produce evidence in the manner laid down by the Holy Quran {XXIV : 4) excepting his own solitary evidence how should he deal with his unchaste •wife. One of such persons was Hilal bin Ummaya who was confronted If it were not For Allah's grace and mercy On you, and that Allah Is Oft— Returniag, Full of Wisdom, (Ye would be ruined indeed). After the conclusion of the revelation of the above Ayats the Holy frophet (AS) felt relieved and told Hilal that Allah has revealed a way •out. The Holy Prophet then directed Hiial to produce his wife, and in the presence of both the Holy Prophet recited the above verses and reprimanded both of them that the punishment of Allah is more severe than the worldly punishment. Hiial said whatever he ha narrated is the •wh01« truth. His wife, however, refuted the allegation and «id before the Holy Prophet (AS) that Hilal was lying. The Holy Prophet then -directed his companions to initiate Lion proceeding as laid down in the Ay an referred to above. Hiial called Allah four times as his wicnes and solemnly affirmed the facts and on the 5th time he invoked the curse of Allah upon him if he was lying. When his wife was confronted with the above situation she kept silent for some-time, but subsequently taid that -she did not want to dishonour her tribe and took the four testimonials refuting the imputation of zina levelled against her by her husband and -on the 5th time invoked the curse of Allah upon her if her husband wa telling the truth. At the conclusion of the above proceedings the Holy Prophet (AS) dissolved their marriage and ordered that the child from the Hilal's wife "would not be surnamed after Hilal. It was further •ordered that no imputation of zina would be levelled against the woman and her son. It was further decreed by the Holy Prophet (AS) that whosoever levelled the accusation of zina against the woman and her son 'would be liable to punishment under Hadd. The tradition further goes that it is not incumbent upon the husband to provide food asd shelter to ihis ex-wife because they have been separated without proper divorce or death and the Holy Prophet (AS) ordered that if the baby on birth is found having brown hairs small hips big stomach and thin shins, should ?be taken to be the of spring of Hilal but if on birth has wheatish complexion, curly hairs, fatty shins and big hips shall be the of-spring of the person who is alleged to have committed adultery with wife of Hilal. he baby on birth had the later genetic characteristics, was ascribed to the person who had allegedly committed adultery with the wife of Hilal and the Holy Prophet said that if Lian had not taken place he would have unished the woman." After carefully examining the injunctions cf tbe Holy Quran (XXIV . 6 to 10) and the tradition of tbe Holy Prophet, (AS) which I havt quoted in extenso, I have come to an irresistible conclusion that there is nc raison det re for convicting and sentencing a woman after Han proceeding; even under tazir. The Han proceedings between the spouses are instituted when th feusband, excepting his own evidence, fails to produce four witnesses t> support his allegation of the commission of adultery by his wife. TJie pro­ duction of four witnesses is thus substituted by taking oatbs and the husband is required according to the injunctions of the Holy Quran a laid down in (XXIV 6) to bear witnesses lour times by Allah that he wastelling the truth and on the 5th, according to verse 7 to invoke the curse of Allah if he was lying. When the wife is confronted with the exercise undergone by her husband, if she accepts the accusation she will be punish­ ed for adultery under the Hadd. In case, however, she refutes and denies the allegations of adultery in the manner done by her husband '•«• »he bears witness by Allah four times (verse 8) that the allegations against her are false and on the Stb time (verse 9) invokes the curse of Allah upon herself if her husband was telling the truth, then the allegation of adultery falls to the ground and she is absolved of the charge and the punishment. This i to, because obviously the paths of accusation taken by the husband and the oaths of denial by the wife are destructive to each other, and ft i.e. lianr proceedings completely demolish the very edifice on which the husband had raised the foundation of allegation against his wife. Though one of then 'may be lying, but since no evidence regarding the accusation as to the comjmistion of the crime existed, therefore, the conviction of a woman under [the tazir would be uncalled for. I may venture to state here that the Han proceedings are taken only in those cases where the husband has no evi­ dence, I repeat no evidence direct or otherwise excepting his own r and the-Holy Quran is quite clear on the subject when it says '•And have (in support) no evidence but their own". When Hilal Bin Ummaya came to the Holy rophet and accused 1 bit wife of adultery the Prophet said : — Bring proof or Hadd will be implemented on your back". According to lbn-e-Qayyim in this Book Alamul Muwaqqiin. Volume l r page 90 vc-JI means aay kind of evidence which proves the claim and it includes personal witness, documentary proof, circumstantial evidence etc. In cases however, where the evidence of the husband accusing bis wife of adultery is supported and corroborated by other circumstantial evidence, J in those cases in my huaible view, Han proceedings would not be initiated and the wife would be prosecuted for adultery under Tazir after taking into consideration the material brought against her by her husband and con­ victed as such. The view expressed by me above is supported on all four by the case of Hilal referred to above. From the language of the tradition cited above one can say that Hilal's wife was guilty of the offence of adultery because in the first in­stance she was hesitant to take the oaths but subsequently she did so, not to save her own honour and reputation but the honour of her tribe and secondly she was pregnant and the Holy Prophet bad ordered that after the birth of the child it should be attributed to a per«on whom" he re­ sembled. Yet after the conclusion of the lian proceedings the Holy Prophet only dissolved the marriage and no punishment, whatsoever wa imposed or inflicted upon her. It may be borne in mind that the dissolu­ tion of marriage was not automatic, it was dissolved because it is against human nature that the parties would live together happily after such an incident. On the birth of the child since he resembled the person who wa alleged to have committed adultery with the wife of Hilal he was ascribed to him and the Holy Prophet said had evidence been not taken earlier (XXIV 6 to 9) he would have punished and taught a lesson to this woman The operative portion of the Tradition where it has been laid dow.n — "The child which this woman is carrying on birth would not be attri­buted to his father but no imputation of zina be levelled against the woman and her son and whosoever accused the woman and her son of zina would be liable to be punished under Hadd. The tradition further goes that it is not incumbent >pon the husband to provide food and shelter to his ex-wife because they have been separated without proper divorce or death and the Hojy Propbet (AS) ordered that if the baby on birth is found having brown hairs, small hips big stomach and thin shins, should be taken to be the if spring of Hilal but if no birth has wheatish complexion, curly hairs, fatty shins and big hips shall be the of spring of the person »ho is alleged to have committed adultery with wife of Hilal. The baby on birth had the latter characteristics, was ascribed to the person who had allegedly committed adultery with the wife of Hilal and the Holy Prophet said that if Lian had not taken place he would have punished the woman." The above dictum by the Holy Prophet has clinched the matter and no ambiguity whatsoever has been left. After going through the lion proceed­ings, there being no evidence direct or otherwise against the wife of Hilal, the Holy Prophet (AS) rightly ordered that no imputation of zina be level­ led -against the woman and her son and whoever did so would render him­ self for punishment under Hadd. Though subsequently the birth of an illegitimate child to the wife of Hilal did provide and i'urnish a solid proof of adultery against her, but since the lion proceedings had taken place where the wife of Hilal had refuted the allegations of zina, no punishment was inflicted upon her by the Holy Propbct. This is » law laid down by the Holy Prophet (AS) and we have to accept it without any demur, there­fore. the opinions of some of the Jurists and commentators to the contrary have to be ignored. The sum total of the above in my humble opinion is that once in thei lion proceeding the wife refute? the allegation zina against fcer in the!.,. manner laid down by the Holy Quran she is completely absolved of the! guilt and therefore, cannot be punished under Tazir, subsequent availability! ! and production of evidence notwithstanding. I have not been able to lay my hands upon any instance, neither quoted by Pir Karam Shah, J. in the case reported in PLD 1982 FSC-S2 or for that in the present majority judgment nor cited by the learned counsel at the bar that during the iife time the Holy Prophet or for that matter during the reign of the KHULAFA-I-RASH1DIN any woman had been punished for such accusation under tazir after the lian proceedings. The reason is quite obvious because after the lian proceedings the accusation against the wife falls flat on the ground. I have also gone through Section 14,of the Qazf Ordinance which hat been quoted in full in the leading judgment. I did not find any shortcom­ ing or lacuna in the said provision. It deals with the question of lian only. If in the lion proceedings the wife refutes the allegations of unchastity in the manner laid down in the Holy Quran it taken her off the pale of accusa­ tion of zina and the function of the Court is only to pronounce divorce between the spouses and not beyond that. The question, therefore, that •he will then be proceeded under section 10 of Ordinance VII of 1979 and punished accordingly does not arise as no offence has been proved to have been committed by her. The upshot of the above discussion is that in the case of Cr. Appeal No. 106/1 Ali Hossain vs. Mst. Kbnrshid Btgam if the lian proceedings between th« parties have not been completed and evidence against the adulteress is available, the case shall be heard and deciJed on merit'. As far Cr. Appeal No. 73/1 of 1982 Mst. Nek fiakbat vs. The State, the lian proceedings in this case have been completed, the marriage has been dissol­ ved by this Court vide order dated 8-2-1983, I acquit Mst. Nek Bakhat of the accusation and set aside her conviction and sentence, She should be relealsed forthwith if not required in any other case. As a cor-oliary of my order of absolving Mst. Nek Bakht of the offence or adultery, I also accept the appeal of Mohammad Rafiq in Criminal Appeal No. 74/1 of 1982, set aside his conviction ard sentence and order that he should be released forthwith if not required in any other case. (TQM) Reference answered accordingly.

PLJ 1984 FSC 66 PLJ 1984 FSC 66 (Appellate Jurisdiction) Present : MUHAMM\D SIDD1Q, J ABDUL RASHID—Appellant versos Msl. SAFIA BIBI—Respondent Criminal Appeal No. 67/L of 1982, decided on 13-12-1983. (i) Otfeice »f Qaif (EaforctnieBt of Haj'j) Ordinance (VIII of J979)—

S. 3— Zina —Imputation of— Qazf— -Commission of—Appellant in his written statement before Judge Family Court as well as in hi statement under S. 342, Cr.P.C. (V of 1698) making allegation of zina against bis wife and even disowning his female child— Held : Allegation of zina and disowning one's child bsiog serious imputation affecting reputation of of person concerned and his family, such allegation to adversely affect future- of his wife and female child— Held further :' Appellant knowingly having made allegation of zina against his wife and . having also disowned his female child, pro­visions of S. 3 of Ordinance to be clea'rly attracted. [P. 76] C (ii) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)—

S. 3— Zina —Imputation of— Bona fides of- Appellant claiming tobe impotent and incapable of performing sexual act—Held : Onus to be upon defence to prove impotency or sexual incapability—Defence in case failing to produce any medical evidence to substantiate such> plea—Appellant in fact remaining mum and raising no issue at earliest after pregnancy of his wife becoming visible—Held : Silence on part of appellant till birth of feraal cheld go against his bona fides.. [?. 76] A ' (iii) Offeice of Qazf; (Enforcement of Hadd) Ordinance (VIII of 1979)—

S. 3— Zina —Imputation of—Accusation— Bona fides of—Held : Expression "good faith to imply bona fide on part of person making allegation and defamation of person against whom such accusation be levelled—Held farther : Onus of having acted in good faith to be upon person wanting to rely upon "good faith"—Appellant failing to discharge such onus rather making accusation against his wife in bad faith—Held : Appellant having not exercised due care and caution not acted in good faith while making allegation of ilna against his wife. [P. 77 & 78] E, F & G. (it) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)—

S. 3, Exception II—Authorised person—Accusation before- Lawful authority—Meaning of—Held : Expression "lawful authority' having been used in general sense to cover any person having lawful authority over ward, Judge Family Court in suit for maintenance of child by no stretch of imagination to be said to have any such lawful authority over that child or her mother, [P. 78j K (y) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)—

S.s3&14— Zina —Imputation of— Lion proceedings—Failure to initiate—Effect of—Appellant initiating no Han proceedings against wife regarding allegation of zina —Held : Proper action having not been taken, circumstance to go against appellant. [P. 76] B (vi) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)—

S. 3 and Family Courts Act (W. P. Act XXXV of 1964)—Ss. 5 & 12—Zina —Imputation of— Qazf— Commission of offence of—Family Court—Judgment on question of legitimacy by—Relevancy of— Held : All proceedings to be decided on their own facts and judg­ ment of Family Court/Civil Court (on question of legitimacy or illegitimacy of female child in case) to have no relevancy for purposesof criminal case pending before Federal Shariat Court. [P. 80} O AIR 1929 PC 99 ; 1972 SCMR 84 ; PLD 1956 Lah. 403 AIR 1945 Lah. 23 (FB) & AIR. 1932 Cal. 293 ref. (Tii) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)—

S. 3 and Family Courts Act (W.P. Act XXXV of 1964)—Si- 5,12 20— Qazf— Conviction for—Maintenance of child—Suit for—Findingin — Relevancy of— Held : Any finding of fact or inference drawn in civil proceedings to have no relevance before Criminal Court where juilt or criminality of accused to be determined on evidence produced by parties before that Court— Held farther : Judgment of Family Court in suit for maintenance of her minor female child filed by wife of appellant being no judgment in rent, proceedings pending between parties before Family Court to have nothing to do with criminal prosecution of appellant for offence of qazf. [P. 81} f viii) Family Cowls Act (W.P. Act XXXV of 1964)— - Ss. 5, 12 & 20 read with Criminal Procedure Code (V of 1898)— S, 488— Family Court— Judgment of— Bindiqjt nature of— Held : Judgment of Family Court on matrimonial issue being binding not only on parties in case bat also upon whole world to be judgment in rtm while that made by it when acting as quasi criminal court on question of maintenance under S. 488 of Act of V of 1 898 to be judgment in personam. [P. 80] LAM ' <ix) Courts— -- Civil and Criminal Courts — Proceedings before — Findings in — Effect of — Held : Functions of Criminal and Civil Courts being different and each court being required to decide case in accordance with evidence produced by parties before it without being influenced by finding of -fact given by other court, criminal and civil proceedings between parties to proceed side by side. [P. 80] N <x) Bona fides— --- "Good faith"— Meaning of— Held : Good faith not merely to imply absence of ill-will but to pre-suppose reasonable degree of care and caution (in making imputation in case) — Held further.: Due care and caution to further imply genuine effect on part of accused to arrive at truth. [P. 77] D '• • <xi) Lawful Authority— -- Meaning of — Held : Expressions "lawful authority" to imply authority recognised, authorised, supported or warranted and not forbidden by law and to include both positive and negative aspects of matter. [P. 78] H <xii) Lawful Authority— -- Meaning of— Held : "Lawful Authority' 1 to mean legal authority where relationship of guardian be established between them by lawful and legitimate means. [P. ] / (xiii) Family Courts Act (W.P. Act XXXV of 1964)— -- Ss. 5, 12 & 20— Ste : Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)— S. 3. xiv) Criminal Procedure Code (V of 1898)— — — S. 488— See : Family Courts Act (W. P. Act XXXV of 1964)— Si. 5, 12 & 20. - Mr. Nlmat Khan, Advocate for Appellant. Mr. Sbojaoddin Qareshl, Advocate for Respondent. Mr. Gholam Siddlqoe Awtn, Advocate for Complainant. Dates of beariif : 15/18-11-1982. JUDGMENT The present criminal appeal arises out of the following facts and .circumstances :— 1. The marriage between Abdul Rashid appellant and Mst. Safia Bibi, respondent took place on 4-7-1980. On 30-5-1981 Mst. Safia Bibi gave birth to a female child. Subsequently on 19-12-1981 she was divorced by her husband, Abdul Rashid, appellant. She filed in the Court of Judge Family Court , Faisalabad , a suit for dowry and maintenance (Ex. P A) of her female child etc. In his written statement '(Ex. P B) her husband Abdul Rashid, appellant disowned thc.sajd female child and made allega­ tion of zina against his wife Mst. Safia, respondent. A punchayat was convened at the house of Malik Muhammad Din, Councillor ofChak No. 124/1. B., Hassanabad (Chuhar Majra), Faisalabad, where the present -appellant alongwith his father is alleged to have said that he was not father of the female child born to Mst Sa.fia, respondent and that the same -was the result of zina committed by her. 2. On 4-5-1982 Mst. Safia Bibi through her father Barkat Ali as her special attorney filed a complaint under Section 3 read with Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Ordinance), against Abdul Rashid, accused appellant in the court of Sessions Judge, Faisalabad. She was directed to present her complaint before the llaqa Majistrate. Accordingly, she presented the said complaint before the llaqa Magistrate. Since the matter was exclusively triable.by the Court of Sessions, the learned Magistrate sent up the case to the Court of Sessions Judge, Faisalabad : for trial, who entrusted the same to the Additional Sessions Judge, Faisalabad for trial. After recording the preliminary evidence the learned Additional Sessions Judge found a prima-facie case against Abdul Rashid, accused and therefore, issued warrants in the sum of Rs. 2000/- against him. Mst. Safia com­ plainant produced five witnesses in support of her complaint. She herself appeared as P. W. 1 and deposed that she was married to the accused Abdul Rashid on 4-7-1980 and her rukhsati i took place on the same day. She stayed for a peeiod of 8 days with the accused as his wife and then she came to her parent's hoyse with him for a short period and thereafter she has been residing whir her husband and also has been visiting her parents. After about 8 months of her marriage, according to their con­ vention, her father came to take her with him for the purposes of the delivery of her first child. It is slated by, her that at that time her husband Abdul Rashid allowed hw to accompany her father and said that if she would deliver a male child only then he would come to take her and if she would give birth to a female child then he would not come to take her. Her father was present at that time, when the accused made these remarks. She came to heir father's house in the same clothes which she was wearing, as she was not allowed to take other articles or ornaments with her. On 30-5-1981 she gave birth to a female child. After this her husband Abdul Rashid divorced her. She instituted a surt-for dowry and mainte­ nance etc., in the Court of Judge Family Court Faisalabad. Her husband Abdul Rashid in his written statement levelled the charge of zina against her. According to her, this was a false allegation levelled by Abdul Rashid against her and by doing so he had injured her reputation and thtt •of her family knowingly. In cross-examination she has deposed that none •of her in-laws visited her after delivery. She denied the defence suggestion thai her rukhsati took place after 4 months pf marriage. It i» further denied by her that she informed the accused that-she Was having relations •with some person before her marriage and that she admitted before the accused that she had got relations with one Abdul Haq. . She further denied the defence suggestion that accusation .of zina against her was correct. It is admitted by her that she came, to know of the accusation of zina levelled against her from the written statement of the accused. It. is denied by her ' that due to litigation she had brought the present complaint falsely. She however,Jadmitted that she and her elder,,sister Mcena were married one and the same day. She denied the suggestion that the rukhsati of her said sister took place on the same day but not or her own. Hasbimat Alt (PW. 2) has stated that:-he knows the parties i.e., the complainant and the accused and he attended their marriage which took place about 2 years ago. Rukhsati of Mst. Safia cotnplaiaant -took place on the day of marriage and she stayed with the accused {or 8 days after the marriage and then they came to her parents' hoase together and stayed for 2/3 days. She ha been living with the accused as his wife since then. She delivered a femalfcchild 11 months after the marriage. It is further deposed by this witnessthat he was a member of the punchayat arranged by her fa then The accused levelled charge of zina against her. Then a second punchayat was arranged at Faisalabad. He alongwith Muhammad Tufail, All Muhammad, Rehmat Ali, Fazal Muhammad .went to the house of Malik Muhammad Din, Councillor of the locality who summoned the accused and his father where the accused and his father again levelled the allegation of zina against Mst. Sana complainant. According to the witness the complainant held a good moral character .and the accusation levelled by her husband was totally false. In cross-examination _jhe has admitted tfaiat he belongs to the brother-hood of Barkat Ali, father of the complainant but is not his uncle's son. He has got relations with her family and also attended all the ceremonies. He denied the defence suggestion that rukhsati of the complainant did not take place on the day of marriage. It is further denied by him that Maklawa of the complainant took place after 4 months of the marriage. He further denied that the accusation of 2 ina levelled by the accused against the complainant was true. It is also denied by him that the accused never levelled allegation of zina in the punchayat convened at Sahiwal. The witness has further denied that the complainant does not hold a good moral character. Muhammad Tufail (PW. 3) lias also made a similar statement that the marriage of Mst. Sana, complainant with Abdul Rashid, accused took place on 4-7-1980 and the rukhsati took place on the same day. After 11 months oT the marriage, she gave birth to a female child and then their relations became strained. Firstly a punchayat was convened at Sahiwal and then at the house of Malik Muhammad Din, Councillor and he was member of the punchayat at Faisalabad. It is stated by this witness that accused levelled the charge of zina against the complainant and disowned the child. The father of the accused also levelled the same allegation against her. According to the witness Mst. Safia Bibi complainant holds a good moral character. In c ross-examination the witness has stated that be is not related to either side but is on visiting / terms with the complainant only in marriage of funenal ceremonies. He has denied the suggestion that the rukhsati of the complainant did not take place the same day. It is farther denied by him tha't Maklawa ceremony took place after 4 months of the marriage. He further denied that he wa» making a false statement due to relationship and that; a false complaint had been filed by Mtt. Safia Bibi. Fazal Muhammad (PW. 4) has also supported the compUinaat'» version. According to him, he knew the complainant and the accused and their marriage took place two yean before -and the rukhsati took place on the same day. He has also supported the; convening of the pvnchayat at the house of Malik Muhammad Din,, Councillor. He was a member of that PuncHayat. The accused and hitfather levelled fahe charge of zina against the complainant and disowned the child. 1« cross-examination this witness has stated that he is not from the brotherhood of the complainant not her belongs originally to the same village. He however, admitted th'at he was on friendly terms with the complainant's father as they attend each other's functions, if called. He denied the defence suggestion that complainant's rukhsati did not take place the same day. He further denied the defence suggestion that he was-making a fatae statement because of relations and that the complainant had brought a false complaint due to enmity. The last witness produced by the complaioaat was her own father Barkat Ali (PW. S). He is also the special attorney of the complainant forahc purposes of the present case. He has-placed on record the power of attorney (Ex. PA). He has stated that Mst- Sana Bibi was married on 4-7-1980 and rukhsati took place the same day. She stayed for 8 days with her husband (accused) and then she returned to her parent's house aiongwith her husband. After 2/3 days both went back, to Sahiwal and most of the period she has been living with her husband. It is, further deposed by this witness that he went to bring Mst. Sana Bibi to bis house after S/9 months of the marriage when she was pregnant for 6/7 months. At that time the accused said that if she would deliver female child then he would not come to have her company or to bring bar to Sahiwal. If she would deliver a male child only then he would come tobring tier. The complainant came empty handed alongwith _this witness- 2/2$ months after this bringing of the complainant to Faisalabad, she gave birth to a female child. After the delivery Abdul Rashid, aceus»d» divorced his wife Mst. Safia Bibi. This witness has further stated that he tried to have reconciliation through punchayaf. Firstly Punchayat wa taken to Sahiwal and the second Punchoyat was held at Faisalabad at the residence of Malik Muhammad P<^. Councillor. Abdul Rasbid, accused and his father again levelled charge of zina against fist. Safia Bibi, com­ plainant. -She filed a suit for ma-ntenance, dowry etc. before Judge Family Court, at Faisalabad. The accused submitted written statement Ex. PBbefore the said Court in which her levelled allegation of zina against Mst. Safia Bibi and suggested that he had never performed sexual intercourse with the complainant after marriage. It was further asserted by the accused that Mst. Safia Bibi never lived with him as wife. It is further stated by this witness that Abdul Rashid accused brought a suit (Ex. PC) for recovery of money (Rs. 24000/-) against the complainant at Sahiwal, in which he asserted that the complainant was his legally wedded wife and had gone to her parent's house one year ago for attending a marriage. Thiswitness has categorically stated that the accused had levelled totally false allegation of zina against Mst. Safia Bibi knowfog it to be false and with a view to injure her reputation and of her family. In cross-examination this witness has stated that Tufail (PW) is not his uncle's son but he is from bis brotherhood. He has however, admitted that Rabmat Ali is his real brother. It is further admitted by this witness that his elder Daughter watalso married the same day. He however, denkd the defence suggestion that rukhsati of Mst. Safia Bibi did not take place on the same day. He further denied the defence suggestion that Mst. Safia Bibi lived with him for four months after marriage. This witness has alto admitted that the litigation is pending between him and the accused. He however, denied the defence suggestion that the charge levelled by the accused was true. 3. Abdul Rashid, accused in his statement recorded under Section 342 Cr. P. C. denied the prosecution allegations, He however, admitted that his marriage wiih Afst. Sana Bibi complainant took place on 4-7-1980 and .asserted that rukhsati took place after 4 months of the marriage. He further denied the prosecution allegation that Afst. Sana Bibi was pregnant from ihim when she was brought to Faisalabad by her father and has alleged that he never performed any sexual intercourse with her from the date of marriage till divorce because ne was unable to perform the sexual inter­ course due to illness. When asked whether he levelled false charge of zina Against the complainant to injure her reputation, firstly, in the punchayat held at the house of malik Muhammad Din and secondly he alleged zina against the complainant in the written statement in the suit for maintenance brought by her, he denied this suggestion that he levelled the charge of zina in the funchayat because no punchayat took place. He however admitted Xhat he levelled charge of zina against Mst. oana Bibi complainant in bis written statement but that was true. When asked why complaint had been brought against him and why PWs made statements against him, be replied as under :— "1 do not know the reasons for the complaint but the facts are that it has been filed as a retaliation to my pronouncement of divorce against the complainant. The witnesses have made statements against me because of their relationship and friendship with the complainant's father." When asked if he would produce defence, he answered in the affirmative. In his supplementary statement recorded on 4-8-1982 Abdul Rashid, accused -stated as under :—• "I was married to Safia four months before rukhsati. Rukhsati took place and she accompanied me at Sah:wal. I was having some sex problems therefore, 1 was not in position to perform the sexual inter­ course with Sana. When rukhsati took place Sana appeared to be pregnant. Sana stayed for 10/12 days. Then came to Faisalabad accompanying her mother. As we were having strained relations, she came back to Faisalabad. Six months after rukhsati the child was delivered by Sana. On this fact I immediately divorced her. I had also mentioned this fact in my divorce deed. The female child does not belong to me. I close my defence cividence," 4. Abdul Rashid, accused produced two witnesses in defence. Abdul Sattar (DW. 1) has stated that Abdul Rashid accused was married two years and 3 months ago and nikah ceremony took place some time before marriage and rukhsati took place after 4 months of the marriage. After 2/3 days of rukntati, women folk .started to talk that Afst. Safia Bibi was pregnant of at least 3/4 months. She went for the first time to the house of Abdul Rashid at the time of rukhsati. According to this witness, from the circumstances, it appears that the child does not belong to Abdul Rashid who had no access to the complainant prior to rukhsati. In cross-examina­ tion this witness has admitted that he was never present in nikah ceremony -or marriage or rukhsati and he never visited the house of the complainant. It was Abdul Rashid, accuaed himself who find informed the witness that nikah had taken place with one Safia. It is admitted by this witness that he belongs to the brotherhood of Abdul Rash id, accused. It is further admitted by him that Abdul Rashid had brought him to the Court to give •evidence and he had paid the expenses of the witness. The witness could not say with certainty if Abdul Rashid accused might have met Sana even before rukhsati because he never accompanied him. He denied the sugges­ tion that rukhsati took place on the same day of marriage and that Sana did not visit the house of the accused immediately after marriage. The The witness was informed by, Akbar Bibi that Mst. Safia was pregnant. It is admitted by him that he had got no personal knoledge about this. Abdul Rasaid accused never made these remarks before him. None of the members of the family of Abdul Rashid talked about the fact on the day of rulhsati or even after that Afsf. Safia Bibi appeared to be pregnant before rukhsati. It is also stated by this witae&s that none from the accused side ever made any complaint about this fact. It is admitted by him that at the time when the complainant was nature with delivery, she was brougut to Faisalabad by her father. He denied his knowledge about any Punchayat held at Sahiwal. He also denied the suggestion that Mst. Safia was not pregnant at the time of rukhsati and that he was making a false statement Because of Muhalledari and brotherhood of the accused. The second witness produced by the defence is Muhammad Aslam (DW. 2). Accord­ ing to him, Abdul Rashid's nikah took place two years and one month -Ago and there was no barat. It was after 4 months of nikah that rukhsati took piace. After 4 days of rukhsati women started talking that Msi. Sana appeared to be pregnant for 3/4 months. She stayed with her hutband and then came to Faisalabad. She delivered the child after ^ months of her"rukhsati. In cross-examination ihe witness has denied nr •uggestion that he is the real brother of the accused. But he wa» on visiting terms with the accused family. He has iidmitted that he was not present in nikah. marriage or rukhsati ceremony but he was verbally in­ formed by the father of the accused that they had gone to Faisalabad to attend the marriage of Sana 's sister and Safia had been given in m'A-/i to the accused the same day. It was openly published in the village by the women-folk that Safia was pregnant before rukhsati but he could not give -the name of any such woman. It is further stated by this witness that he was informed by the accused that he was under treatment for some sex disease and Sufi of Chak No. 73 who was a Hakeem was treating the accused. The witness never asked the accused if he 'was. suffering from some disease. 5. The trial Court vide impugned judgment dated 7-8-1912 found Abvlui Kasbid accused guilty under Section 11 of the Ordinance .h - •' -rnrenn-J him to undergo R.I. for one year plus 10 stripes and a fine o: K in default of payment of fine further R.I. for 3 months. 6. Hence this appeal. 7. Jt is vehemently contended by Mr. Nimat Khan the learned counsel for the appellant that charge of Qazi under Section 11 of the Ordinance has not keen legally proved against the appellant. According to Mst. Safia Bibi, complainant, when her father Barkat Ali came to her jo-law's house to take her lo his house for the purposes of first delivery as is customary, Abdul Rashid, appellant had said at that time that if she gave birth to a male child then he would come to take her back and if she would give birth to a female child then he would not comc~t«~have her. This version .is supported by Mst, Safia Bibi complainant as wetl as her father Barkat AU AW, who was present at that occasion. I have minutely scrutinizedtheir statements and find that this aspect of the case has been duly estabiished by these two witnesses. The defence could not shake their credibility on this issue. In fact no specific queuion in cross-examination was put tothese witnesses About this particular aspect of the case. In these circunurtances I find that the prosecution has established this issue, against th accused appellant. This conclusion gets support from other circumstances of the case. If the appellant really did not have any sexual intercourse with her due to his incapability and Mst. Sana Bibi complainant wasalready pregnant from somebody else and her character was really loose and the woman folk had started talking about her pregnancy immediately after her arrival in the house of the appellant immediately after the marriage then he should have disclosed this fact to her and other people openly. There is nothing on the record to show that the appellant indicated this fact in any manner to anyone before the actual delivery. If he was really impotent and unable to perform sexual act due to any reason and his wife Mst. Safia Bibi was already pregnant when she came to his house after marriage, like ordinary prudent husband he should have shown his resent­ ment in some form against her pregnancy. Silence on his part is a clear indication that the version of his wife Mst. Safia what he said about the result of her delivery the child being male or female, is true. 8. According to Mst, Safia, respondent, her husband Abdul, Rash id appellant made allegation of zina against her at three different occasions in' the Punchayat at Sahiwal and then in the Punchayat at the residence of Muhommad Din, Councillor, Faisalabad and in bis written statement Ex, P/B filed before the Judge Family Court, Faisalabad. Although the prosecution several witnesses to prove the allegation of zina made by the appellant before the Punchayat at Sahiwal and Faisalabad yet even if this part of the case is kept out of consideration the factum of levelling of allegation of zina by Abdul Rashid, appellant against Mst. Safia standsotherwise proved beyond any shadow of doubt. It is an admitted fact that Abdul Rashid, appellant in his written statemeat Ex. P. B. filed before the Judge Family Court, Faisalabad, has levelled this allegation.of zina against Mst. Safia and also disowned the female child of Safia, respondent. Further he has admitted this fact in his statement recorded under section 342 Cr. P. C. While replying question No. 4, Abdul Rashid, accused appellant in categorical terms admitted that he levelled charge of zina against Mst. Safia, respondent in his written statemeat but that was true. It is further admitted by him that the female child did not belong to him. In support of this allegation the appellant has advanced several reasons. One stand taken by the appellant is that he was married to Safia- respondent 4 months before her ruskhati. In other words, her ruskhati toefc place after 4 months of her marriage on 4-7-1980 and when she went to the house of her husband the woman folk started talking that she was already pregnant by 3/4 months. Whether ruskhati took place on the day of marriage or 4 months thereafter, is a pure question of fact which has to be proved by evidence—direct or circumstantial. It is an admitted position that the marriage of the appellant with Mst. Safia took place on 4-7-1980. As regards her rukhsatt there are two versions. According to- the com­ plainant and her father Barkat AH (PW) her rukhsati took place oil the same day i.e., 4-7-1980. On the other hand the defence suggestion » that her rukhsati took place 4 months after 4-7-1980. No reason hat beew assigned by the appellant as to why the rukhsati did not take pfcce oo thr day of marriage but 4 months thereafter. It is aot denied that Mil. Safia was major on the day of marriage and there is nothing on the record to- «uggest why her rukhsati could not take place on that day, General practice in our society is that marriage and rukhsati take place on the same day unless there is a special reason to show the contrary. If for example Afjf. Safia bad been minor or there was some other financial pro­ blems then, rukhsati could take place subsequently. Even then there should be some reason for performing nikah without rukhsati. It is an admitted fact that the marriage of elder sister of Mst Safia also took place on the-same day and there were therefore two barats on the same day which> reached the house of Barkat Ali (PW) father of the .girls. The defence has suggested in cross-examination to practically all prosecution witnesses that rukhsati of Mst, Safia took place 4 months after her marriage but all have categorically denied the defence suggestion and have asserted that in fact rukhsati took place on the same day of marriage i.e., 4-7-1980. The defence has suggested no reason why rukhsati had taken place 4 months after the marriage. The defence has produced no positive evidence in support of this suggestion. Abdul Sattar (DW. 1) has asserted in .his examination-in-chief that rukhsati took place after 4 months of marriage but in cross-examination he has admitted that he was never present in the nikah ceremony or marriage or rukhsati and he had never visited the house of the complainant Mst. Safia. It is further stated by this witness that it was Abdul Rashid, accused himself who had informed him that his nikah hid taken place with one Safia. After this admission the testimony of thiswitness has lost all significance. His statement is based upon mere hear­say. Same is the position of Muhammad Aslam (DW. 2). He has alsoadmitted in cross-examination that he was not present in nikah, marriage or rukhsati ceremony but was infer -ec d verbally by the father of the accused' that they had gone to Faisalabad to attend the marriage of Safia's sister and Safia had been given in nikah to the accused the same day. It is not disputed the, if the marriage and rukhsati had taken place on different dates, the same could easily be proved by producing direct evidence of persons who had participated in those ceremonies. Thus it is established beyond any doubt that the marriage and rukhsati of Mst. Safia took place on the same day i.e., 4-7-1980 and not 4 months thereafter as suggested: by the defence. 9. As regards the (allegation that Mst. Safia, respondent waspregnant by 3/4 months, when she reached her husband's house on the first occasion after her marriage, the defence has not produced any direct evidence in support of it. Abdul Rashid appellant has made this allegation in his statement and this suggestion has also been made in cross-examina­ tion to the prosecution witnesses, who have denied the same. Abdul 1 Sattar and Muhammad Aslam (DWs) have asserted that 2/3 days after her rukhsati, the woman folk were talking about Safia's pregnancy b»t both these witnesses as mentioned above, have no direct knowledge and their statements were based upon hearsay evidence. It has already been held above that marriage and rukhsati of Mst. Safia took place on the same day i.e., 4-7-1980 and admittedly she gave birth to a female child on 30-M981. hence the question of pregnancy for 3/4 months on her first arrival in appellant's house would not arise. Moreover, the conduct of the appellant as an ordinary husband goes against him. If his wife was really pregnant before her rukhsati, and women folk were talking about it, he should havtr indicated his resentment or protest against it in some form. He could •disclose this to Mst. Safi» or her father and mother. This was a serious matter aad therefore on this issue he could be justified even to divorce her. Thus the proper stage for divorce on the alleged ground, was, that the moment he came to know about her said pregnancy, he should hav« re­ acted in that manner and should have ( divorced his wife Mt. Sana at that tage. There was no legal bar in his ' way not to do sc, but it is an ad­ mitted fact that he neither divorced his wife at that stage nor otherwise he protested against such pregnancy to anyone in any manner. As mentioned .«bove he divorced his wife on 19-12-1981 when she had already given birth to a female child earlier on 30-5-1981. This circumstance also supports the above version of the wife and goes against the defence suggestion. 10. Another circumstance suggested by the defence in this behalf isthat Abdul Rashid was having some Sex problems and therefore was not in a position to perform sexual intercourse. In other words, the appellant was not capable to perform sexual act and therefore a female child born to I lis wife ffst. Safia could not b: his legitimate child. It is not disputed that in such a situation if he appellant was claiming t» be impotent or wat ncapable to perform sexual act and was suffering from some sex disease,, [he onus would be upon the defence to prove his impotency or sexoal ncapability. Again such impotency or incapability to perform sexual act could be established throught medical evidence but the defence Tailed to produce any such evidence to substantiate this plea. Moreover, the appellant could not remain mum till the female child was born but he should have raised this issue at the earliest when piegnancy of his wife Mst. Safia became visible or known. Thus silence 'on the part of Abdul Rashid appellant till the birth of the female child also goes against his h ona fide and supports the version of Mjf. Sana, complainant. 11. Further it is not disputed that the proper course for the appellant tin this behalf was to initiate lian proceedings against his wife regarding the 'allegation of zina. It is an admitted fact that he took no action whatever •regarding lian proceedings. This circumstance also goes against the (defence • 12. Another argument advanced by the learned defence counsel is that the offence of Qazf has not been established against the appellant. 'Qa:f has been denned under section 3 of the Ordinance as under : "3. Whoever by word either spoken or intended to be read, or by signs or by visible representations, mikes or publishes an imputation, of zina concerning any person intending to harm, or knowing or hav­ ing reason to believe that such imputation will harm, th'e reputation. or hurt the feelings, of such person, is said, except in the cases herein­ after excepted, to commit qazf." I t is an admitted fact that the appellant in his written statement Ex.P.B. ind in his statement recorded under section 342 Cr. P. C. has made allegation of zina against Mst. Sana respondent. He has further disowned the female child born on 30-5-1981. It is not disputed that in our society allegation of zina and disowing one's child is serious imputation which affects the reputation of the person concerned and hii/her family. It is admitted that such allegation is bound to adversely affect the future of Mst. Safia as well as her female child. The appellant knowingly made this allegation of zina against Mst. Safia respondent and disowned his female child and therefore provisions of section 3 of the Ordinance would clearly be attracted. 13. The learned defence counsel ha also contended that the case of ihe appellant ii covered by second except ion of section 3 of the Ordinance which is reproduced below :"Second Exception (Accusation preferred In good faith to authorised person).—Save in the cases hereinafter mentioned, it is not qazf to prefer in food faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation". A perusal of 1 the above shows that there are two main ingredients of this , exception namely.— (a) when accusation of zina is preferred in a good faith against any person ; and ' (5) the accusation is made to any of those who have 'lawful authority' over that person with respect to the subject-matter of accusation. The expression 'good faith' has not been defined in the Ordinance. It is, however provided in section 2 (b) of the Ordinance that all other terms and •expression not defined in this Ordinance shall have the same meaning as in the Pakistan Penal Code or the Code of Criminal Procedure, 1898. In section 52 of the Pakistan Penal Code this expression 'good faith' has been defined as under: 'Good Faith': Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention." This definition is in the negative. This expression is also used in several other sections of the Penal Code. Section 79 of the Penal Code is also relevant dealing with 'good faith' and is reproduced below - "Agt done by a person justified, or by mistake of fact believing himself justified, by law.—Nothing Is an offence which is done by any per»on who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law; in doing it." However the General Clauses Act, 1897 has given positive definition of this expression in tke following words : "3 (20) a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not." This expression is also defined in other statutes but in view of section 2 (b) of the Ordinance, it is not relevant and necessary to examine all such definitions Thus'good faith' does not merely imply absence of ill-will but pre-supposes reasonable degree of care and caution in making an imputation. Due care and attention further imply genuine effort on the o part of the accused to arrive at the truth. In the instant case appellant Abdul Rashid has placed on record no material—direct or substantial to show that he exercised due care and attention or pre-caution before levelling ihe allegation of zina egainst his wife. It is further clear that the expres-f •ion 'good faith' implies bona fide on the psrt of the person making[the E .allegation and defam ation of the person against whom such accusation is levelled. Again in the instant case Abdul Rashid, appellant has f reduced! no evidanee to thow his bonafide that the levelled the accusation of ziM against hii wife A/if. Sana in good faith. The record u completely silent about the bona fide of the appellant—rather mala fide intention of the appellant and defamation of the respondent are elaarly demonstrated. U is well-settled now that if any person wants to rely upon 'good faith' the onus will be upon him that he acted in good faith. The appellant however has failed to discharge this onus—rathe it is clear that he made this accusation against his wife in'bad faith. It can, therefore reasonably be held that the appellant, in the circumstances of the case, did not exercise due care and attention and consequently did not act in good faith while making the allegation of zina against his wife. 14. At regards the second ingredient of the second exception of .section 3 of the Ordinance, namsly 'lawful authority' the argument of the learned defence counsel is that the husband (appellant) made this accusa­ tion in his written statement filed before the Judge Family Court where the suit for maintenance etc., was pending. According to the defence counsel the expression 'lawful authority' would include that trial court i.e. the Judge, Family Court as according to him daring the pendency of this suit that court will have lawful authority over the minor female child and tier mother. The expression 'lawful authority' has neither been denned in (the Ordinance nor in the Penal Code, but it has been defined in several jther statutes. In the Constitution of Pakistan this expression has been 'used in Article 199 and several other Articles and has been the subject matter of interpretation before the superior Courts including the Supreme Court. The expression 'lawful authority' has also occurred in some other statutes and has also been denned in law dictionaries. The expression 'lawful authority implies that authority which is recognised, authorised, supported or warranted by law and is not forbidden by law. In other words this expression include both positive and negative aspects of the matter. The learned defence counsel has not been able to point out any provision of law authorising the Judge Family Court while dealing with suit for maintenance of minor child as having lawful authority over such child and her mother. It is established principle that in a case of this type a person who raises s,uch a plea the burden of onus would be upon him to establish the same but the appellant has failed to discharge the l&ame. Further 'lawful authority' means that legal authority where rela- Itionship of a guardian and ward is established between them and such 'relationship is established by such means which are lawful and legitimate. The Judge Family Court in a case of this type is neither a natural guardian nor a legal guardian or a guardian appointed or made in lawful manner by a competent person or authority. The Judge Family Court in the instant case has nothing to do with the 'care and custody of a minor female child jr her mother. It is not disputed that the expression 'lawful authority' las been used in general sense to cover any person who could have lawful ' authority over the ward e.g. a husband can legitimately claim lawful authority over his wife and his children. Similarly father/mother can have lawful authority over his/her children. A guardian can also have lawful

authority over his; ward whether appointed by the court or otherwise. Similarly a master can claim such authority over his servant. 1 however fail to understand how in a suit for maintenance of a minor child, the lodge Family Court can be said to have any such lawful authority over that child or her mother Mrt. Sana . A mentioned above tbt dispute before the lodge Family Court it regarding the maintenance of the female child etc., and there is no dispute regarding appointment of guardian ere. of that female child. In the circumstances of the case therefore I feel no hesitation to hold that the Judge Family Court by no stretch of imagination can be said to {have lawful authority over Mst. Safia or her child as con­ templated by second exception of section 3 of the Ordinance. The result is that both the ingredients of the second exception have not been established in the present case and consequently this exception cannot be attracted and applied to the facts of the present case. , 15. Another argument advanced by Mr. Nimat Khan, the learned counsel for the appellant is that since maintenance proceedings are still pending before the Judge Family Court and the appellant is likely to succeed in proving the contents of his written statement filed before that court, therefore bis trial under Qazf Ordinance could not proceed or the •aid criminal proceedings should have been stayed till the final decision by the Judge Family Court because the decision of the Judge Family Court regarding legitimacy and illegitimacy would be binding on the criminal court, as that judgment would be judgment in rem under section 41 of the Evidence Act. The jurisdiction of a Family Court under section 5 of West Pakistan Family Courts Act, 1964 is exclusive to entertain, hear and adjudicate upon matters specified in the Schedule namely : 1. Dissolution of marriage; 2. Dower; 3. Maintenance ; 4. Restitution of conjugal rights ; 5. Custody of children ; 6. Guardianship ; and 7. Jactitation of marriage. In the instant case we are concerned only with 'maintenance as suit filed by Mst. Safia before the Judge Family Court is to claim mainten­ ance for her female child etc. We will therefore, examine the nature of the jurisdiction of th.e Family Court regarding which 'maintenance'. For the purposes of 'maiatenance' section 20 of the Act is relevant which is re­ ported below: "20. Investment of powers of Magistrates on Judges.—Government may invest any Judge of a Family Court witb powers of Magisirate, First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898". By Notification No. Integ. 10-31/64-1, dated the 5th April, 1966, the Governor of West Pakistan in exercise of powers conferred by section 20 or the West Pakistan Family Courts Act, 1964 referred to above, has invested all Judges of the Family Courts with powers of Magistrates of First Class to make orders for maintenance under section 488 of the Code of Crimiaal Procedure. This notification reads as under : "In exercise of the powers conferred by section 20 of the West Pakistan Family Courts Act, 1964 (XXXV of 1964), the Governor of West Pakistan is pleased to invest all Judges of the Family Courts with powers of Magistrates of First Class to make orders for maintenance under section 488 of the Code of Criminal Procedure, 1898 (V of 1898)." Thus a Family Court functions in duel capacity. It acts as matrimonial court with respect to matters of dissolution of marriage etc., and it alsotcts as a quasi criminal court while dealing with maintenance under section 488 Cr. P. C. In the instant case we are only concerned with 'main­ tenance'. On the legal plan if the Family Court decides a matrimonial issue its judgments will be binding not only on the parties in the case but upon the whole world and such judgments would be termed as judgment in rem. The question however which arises for consideration is whether in the instant case the judgment of the Family Court regarding the main­ tenance of a female child and Mst. Sana would be a judgment in rem or not. As mentioned above while deciding the question of maintenance the Family Court would be exercising powers of a Magistrate First Class to • make orders under section 488 of the Code of Criminal Procedure and therefore will be acting as a quasi criminal, court and consequently its , judgment will be judgment in personam no judgment in rem. 16. As regard the general question tha,t the same issue of legitimacy or illegitimacy of the female child is the subject matter before the Family Court, it is well-settled now that criminal proceedings and civil proceedings can side by side proceed between the same parties because the functions of :riminal and civil courts are different and each court has to decide the case in accordance with the evidence produced by the parties before it. In other words, one court will not be influenced by the finding of fact given by the other court between the parties. For instance, in the instant case the criminal court was to decide whether the prosecution had established the guilt of the accused beyond any doubt or not and this was to be decided on the evidence produced by the parties before that court. The trial court .could not rely upon any finding of fact given by the Judge Family Court regarding any issue between the parties. Similarly the Family Court is to decide the case on the basis of evidence produced by the parties before it and it will not be influenced by any finding of fact given in the criminal ase. It is well-settled now that all proceedings must be decided on their own facts and the judgment of the Family Court/Civil Court will not be relevant for the purposes of criminal case pending before this Court. The Privy Council in the cake of Kumar Gopika Raman Roy vs, Atal Singh ant others (AIR 1929 PC 99) enunciated this principle in the following words :— "In their Lordships,' opinion these statements are not admissible as evidence of rents having been realized from the defendants in that suit. The Indian Evidence Act does not make finding .of fact arrived at on the evidence before the Court in one case evidence of that fact in another case." The above principle was followed by the Supreme Court of Pakistan in Mst Master Begum's case reported in 1972 Supreme Court Monthly Review 584 late Chief Justice Hamoodur Rehman while delivering the judgment of the Full Bench was pleased to observe as under:— "Learned counsel appearing in support of this petition reiterates the contention that the judgment of the civil Court should have been taken into account, before arriving at a decision in the criminal case. We are unable to agree, because, as pointed out by the Privy Council in the case Kumar Gopika Raman Roy v. Atal Sicgh (AIR 1929 PC 99) "the Evidence Act does not moke a finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case." Thus, a judgment in a civil Court, ai pointed out by M. Munir in his Law of Evidence, "is not admissible in a criminal proceeding to estab­ lish the truth of the facts upon which it is rendered. Jn a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before it". The position would be the same with regard to a judgment of a civil Court in a subsequent criminal action. In this view of the matter we are of the opinion, that the trial Magistrate and the High Court rightly did not take the findings of the civil court into account in determining the guilt of the accused in the criminal case." Justice Kaikaus as he then was in Mst. Muni's case (PLD 1956 Lahore 403) held that the result of civil suit is not binding on the criminal courts and -criminal proceedings cannot be stayed. Earlier the Lahore High Court in its full Bench decision Kashyap v. Emperor (AIR 1943 Lah. 23) answer the following reference in the negative :— "When there are concurrent proceedings covering the same ground before a criminal Court and a civil Court, the parties being substanti­ally the same, would the judgment of the civil Court, if obtained first, be admissible in evidence before the criminal Court in proof or dis­ proof of the fact on which the prosecution is based ?" Similar view was taken by the Calcutta High Court in A.I.R. 1932 Cal. 293. Thus following the principle enunciated by the Privy Council, the Supremo Court of Pakistan and other superior Courts in this sub-continent, it can safely be held that the civil proceedings pending between the parties before the Judge Family Court regarding maintenance have nothing to do with the present criminal prosecution of Abdul Rashid appellant. Any finding of fact or inference drawn in the civil proceedings will have no relevance before the criminal court where the guilt or criminality of the aceused is to be determined on the evidence produced by the parties before that Court. The judgment by the Judge Family Court in the suit for maintenance of her minor female child filed by Mst, Safia could not be a judgment in rent but judgment in personam. I, therefore find no force in this contention or plea. 17. As regards the allegation of disowning the female child by Abdul Rashid, appellant, the Supreme Court has already settled this issue in Haneeda Begum's case (PLD 1975 S.C, 624} that under the Muhammadan Law the pa'ernity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgment or affirmation of parentage on his part and such child follows the status of the father. Reliance in this behalf can be placed upon the following observations of Jheir Lordships :— "Under the Muhammad Law, as in all civilised systems of law, the child follows the bed (firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgement or affirmation of parentage on his part and such child follows the status of the father. According to the Sunni schools the presumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of <Jae husfeand or by divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child. Of course, presumption based on the bed is subject to the right of disapproval on the part of the husband for want of access, This right has to be exercised in accordance with the custom of the locality either on the day of the child's birth or at the time of purchasing articles necessary in vtew of its birth or during the period of rejoicing,. If the husband is absent, he must disown the child immediately he is informed of its birth. The shortest period of gestation, according to all the schools, is six months. If, therefore, a child is born within six lunar month of the marriage, no affiliation would take place unless the man acknowledge it to be his issue. In other words, it is the right of the man to legitimate a child born within this time by acknowledging expressly or impliedly that the conception took place in wedlock. According to the Hanifis, contrary to the Shaft' is, the husband is entitled to claim the child born in wedlock as his, even if he had no access to the wife. If the husband wishes to repudiate a child so born, he can only do so by the procedure of la'an that is to say, if he swears before the Qadi that the child is illegitimate and fruit of adultery, in which case the Court will pass a decree not only dissolving the marriage but declaring the child to be illegitimate." The admitted factual position in the present case is that marriage bet­ ween Abdul Rashid, appellant and Mst. Safia respondent took place on 4-7-1980, the femle child was born on 30-5-1981 and she was divorced by the appellant on 19-12-1981. He disowned the child in his written state­ ment filed on 8-3- 1982. 18. For the foregoing reason this appeal fails and the same is hereby dismissed. The conviction an.sentences of Abdul Rashid, appellant are maintained. He is on bail. He shall be takej into custody forthwith to» undergo the unexpired period of imprisonment, (TQM) Appeal dismissed,-

F L 3 1984 FSC 82 (Appellate Jurisdiction) F L 3 1984 FSC 82 (Appellate Jurisdiction) Present ; B. G. N. KAZI, J. Mst. RAFAQAT BIBI— Appellant THE STATE— Respondent. Criminal Appeal No. 1631/1 of 1983, decided oa 17-1-1984. Offence of Zina (Enforcement of Hadoed) Ordinance (VH of 1979)— - S. 10— Zina— Offence of— Confessional statement— Evidentiary value of—Held ; Confessional statement (made basis for cor"iction jn case) to be read in its entirely and exculpatory part not to be oat— Held fuither : Mere conjectures not to be considered as evidence of consent (on part of appellant for alleged commission of offence of zina). [P. ]A PLJ 1978 SC 293 & Cr, App. No. 123/1 of 1983 (FSC) ref, Mr. Asif Hussain Siddiqi, Advocate for Appelaat. Mr. Muhammad Jamil Khan, Advocate for State. Date of hearing : 11-1-1983. JUDGMENT B.G.N. Kazi, J.-- The appellant Mst. Rafaqat Bibi alongwitb Muhammad Suleman was charged with committing Zina by the learned Additional Sessions Judge Abbottabad at Haripur, who also charged coaccused Mst. Farooq Jan, Mst. Shakeela Bibi, Haider Zaman and Shafiqur-Rehman for abetment of the aforesaid offence. Whereas all the other accused including Muhammad Suleman were acquitted, Mst. Rafaqat Bibi was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (here-in-after referred to as the Ordinance) and sentenced to five years' R.I., five stripes and a fine of Rs. 500/- or in default to undergo further R.I. for three months. The appellant has filed the instant appeal against her aforesaid conviction and sentence. 2. At the very outset it may be stated that there was no other evidence with regard to the alleged commission of offence of Zina by the appellant except her confessional statements in which, however, she had clearly stated that Muhammad Suleman, the acquitted accused, had committed Zina-biljabr with her. It may also be stated here that Muhammad Jamil Khan the learned counsel for the State has not supported the conviction of the appellant. 3. There was the evidence of Dr. Mrs. Mumtaz Khattak who had examined the appellant on 17-12-1982 that the appellant had 8 month pregnancy at the time of her examination. However, the aforesaid evidence cannot be considered sufficient to convict the appellant for commission of offence of Zina which has been defined in section 4 of the Ordio&ice, and inter alia involves wil-fully having sexual intercourse. In the instant case according to the appellant there was no wilful participation in the sexual intercourse by her as Muhammad Suleman committed Zina-bil-jabr vith her. This statement of the appellant is also supported by the fact that it was she who had complained by addressing an application to the Sub- Martial Law Administrator, Abbottabad which ultimately came to be registered as FIR. wherein she had expressly stated that she had been made to submit forcibly to sexual intercourse by Muhammad Suleman. Mr. Asif Hussain Siddiqi, the learned counsel for the appellant has referred to the decision of this Court (Criminal Appeal No, 1J 9/1 of 1983) in the ease of Mst.. Shanaz Bibi wherein it had been held thai confession must be read as a whole and that exculpatory portions caanot be ignored unless there is evidence on record to prove their incorrectnest". In that decision reliance was also placed on the decision of Supreme Court is Naiib Raja Rahmani v. The State (reported In PLJ i 978 SC 293). 4. The learned counsel for the appellant lias also referred to the decision of this Court in Criminal Appeal No, 123/1 of 1983, namely Mst, Sofia Bibi v. The State, In that case there was a-- evidence ag;> ; rst hc appellant and conviction was based on ibe ?V;t of her pregnrncy and motherhood which the trial court had considered as evidence of culpability. ib that it was ebserved as uader :— "Confession should be read as a whole and exculpatory portions therein cannot be excluded from consideration unless there is evidence on record to prove those portions in-correct." It was, therefore, held that in absence of any evidence to establish sentimental attachment for co-accused it could not be said that sexual inter­ course was indulged into wilfully. 5. Since in this case the confessional statement is being made the basis of the conviction it is to be read in its entirety and exculpatory part innot be separated out and mere conjectures cannot be considered as evidence of consent. The appeal is, therefore, allowed, the conviction and sentence set aside and the appellant acquitted. She is no bail and her bail bond stand cancelled. 4TQM) Appeal allowed.

PLJ 1984 FSC PLJ 1984 FSC (Appellate Jurisdiction) Present: B.G.N. KAZI, J SHAUKAT ALI—Appellant Versus THE STATE— Respondent Criminal Appeal No. 112/L of 1983, decided on 15-10-1983. Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— —S- 10 (3)— Zina-bil-Jabr —Offence of—Conviction for—Evidence— Appraisal of—Medical evidence not at all supporting evidence of complainant—Chemical Examiner also not finding any semen or swabs sent to him by Doctor—Complainant also found habitual tc sex intercourse by another doctor—Complainant even not mention­ ing names of eye-witnesses in his statement incorporated as FIR— Serious contradictions also found in testimony of alleged eye­ witnesses regarding what they actually seen—Held : Doubt having been created with regard to guilt of accused and evidence against him being also not trustworthy, conviction of appellant to be set aside, [Pp. 89, 90] 4, B & C Khawja Sultan Ahmad, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Date of hearing: 5-10-1983. JUDGMENT The appellant was tried by the Second Additional Sessions Judge, Sahiwal, on charges of committing Criminal trespass into the house of Mst. Sharifan and committing Zina-bil-Jabr with her. He was convicted under section 450 P.P.C. and sentenced to R.I. for 3 years and to pay a fine of Rs. 500/-or in default to suffer further R.I. for 3 months, and under sec­tion 10 (3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and sentenced to R I. for seven years and whipping numbering 30 stripes. He has filed the instant appeal against the aforesaid convictions and sentences. 2. The facts of the prosecution case are as under:— On 21-3-1981 Mst. Sharifan daughter of Wali Muhammad resident of Kot Hukam Singh, Tehsil Pakpattan Sharif District Sahiwal, complained to AS1 Manzur Ahmad of Malka Hans, who at the time was present at Adda Nurpur of his circle, and the complaint was drafted by him on the verbal statement of Mst, Sharifan. It was read over and explained to her and in token of its correctness she put her thumb mark on it. ASl Manzur Ahmad sent the complaint to the Police Station for formal registration of the case. H,C. Khadim Hussain of Malka Hans P.S. who received the complaint drafted formal F.I.R. which was registered. 3. The F.I.R. translated in English reads as under :— "I am a resident of Kot Hukam Singh. Yesterday, i.e. 20-3-1981 I was all alone in my house, my brother and my mother had gone to Nurpur to get medicines. At about 3/4 p.m. 1 was sitting alone in the court-yard of my house when Shaukat son of Yar Muhammad " Bodla armed with a knife came there and after placing his band on my mouth forcibly took me inside the room. He threw me on the ground, removed my shalwar and committed zina-bil-jabr with me. I raised alarm on which Shah Muhammad son of Sikander, caste Sukhira Rajput and Sadiq son of Said Muhammad caste Rajput Chauban came there. On seeing them, Shaukat ran away. Mst. Ajhhu daughter of Pathana caste Bhatti was present outside the door and it was with her connivance that Shaukat committed zina-bli-jabr with me. Necessary action be taken." 4. A SI Manzur Ahmad got Mst. Sharifan medically examined by Lady Doctor Zubaida Khatoon, Medical Officer, District Headquarters Hospital , Sahiwal, on the same day. ASI Manzur Ahmad visited the scene of offence ahd prepared rough site plan. He recorded statements under section 161 Cr. P.C. 0f the P.Ws. He partly conducted the investigation and handed over the same to D.S.P, Ch. Sanaullah of Pakpattan on 24-3-198!. After completion of the investigation the appellant was challaned only for the offence under section 451 P.P.C. and no case against Mst. Ajhhu could be made out. The challan was submitted in the Court of Ilaqa Magistrate However, Mst. Sharifan filed direct complaint under section 6 of the Offence of Zina(Enforcement of Hudood) Ordinance, 1979, against the appellant and Mst. Aihhu on 16-5-1981 in the Court of Sessions Judge, Sahiwal and the Magistrate before whom the challan case was pending forwarded the same to the Sessions Judge for trial alongwith the direct complaint case. Session-­ Judge Sahiwal directed the complainant to present the direct complaint before the Ilaqa Magistrate so that it could be sent up for trial in ihe Court of Sessions. The complainant however filed another complaint directly in the Court of Sessions Judge, Sahiwal, on 19-5-1981 which was forwarded to Magistrate empowered under section 30 Cr. P.C. for inquiry. The Magis­ trate recorded statements of witnesses including that of Lady Doctor Miraj Bokhari, who at the instance of the complainant had examined her on 16-4-'981. 5. The Second Additional Sessiont Judge, who ultimately was entrust­ ed with trial of the direct complaint case as well as the challan case procceeded with complaint case in which there are two accused and disposed of both the cases by single judgment, 6. The complainant produced six P.Ws, namely Dr. Miss Miraj Bokhari (P,W. 1) the complainant herself (P.W. 2), Maqbul (P.W, 3) Sadiq <P.W, 4), Shah Munammad (P.W. 5) and Muhammad AH (P.W. 6). Of these witnesses Dr. Miss Miraj Bokhari who had examined Mst. Sharifan on 16-4-1981 at her instance, and Maqbul, and Muhammad Ali who were named in the direct complaint, were not witnesses in the chalian case. 7. I have heard the arguments of the learned counsel of the parties and gone through the record. There are inherent weaknesses in the case of the prosecution which create doubts regarding the guilt of the appellant. 8. Undoubtedly the F.I.R. was lodged after delay and the complai­ nant explained that her brother and mother had gone out to Nurpur and it was only after their return that she could go and report to the police. The learned Additional Sessions Judge accepted the explanation without considering the fact that the brother and mother of the complainant were neither offered nor examined as witnesses, who could have corroborated at least her version about the delay. It is surprising to note that the young girl went herself to complain to ASl Manzur Ahmad at Adda Nurpur and although she stated that her mother accompanied her, there is no evidence of the investigating authorities including the AS! to that effect. Even when she was not satisfied with police investigation again she filed the direct complaint and in the complaint too the brother and mother were "not cited as witnesses. 9. The evidence of the complainant is not at all supported by the medical evidence of the doctor of her own choice namely Dr. Miraj Bokhari who examined her on 16-4-1981, 27 days after the alleged rape. The Doctor jwas of the opinion that she had been subjected to sexual intercourse 4 or |5 days prior to 16-4-1981. The evidence therefore cannot possibly corro­ borate the evidence of so called victim of the rape which according to her took place on 2C-3-1981. It is also significant to note that the Chemical Examiner did not find any semen on the swabs sent to him by Dr. Mrs. Miraj Bokhari. The complainant had recourse to second medical examina­ tion and opinion although the evidence of Dr. Zubaida Khatoon fixed the time of sexual intercouse on the date of incident, only, because of her opinion that the complainant was habitual to sexual intercourse. She had given one of the reasons for her opinion to be the fact that she admits two fingers easily in her vagina and the Dr. denied that Sharifan felt pain during medical examination. The opinion given by Dr. Miraj Bokhari is also that the vagina admits two fingers but according to her the examina­ tion wjs painful. Since the doctor was also definite about there having been sexualI intercourse 4/5 days prior to 16-4-1981, the pain may well be attributed to it but not to the alleged rape by the appellant on 20-3-1981. While discussing this aspect of the case it is observed that it is part of defence that the girl is one of easy morals The learned counsel for the appellant in this respect referred to the deposition of Ch. Sanaullah D.S.P. in which he inter alia stated that according to his investigation it was some other person namely Shah Sawar who had illicit relations with Mst. Sharifan. 10. It is also apparent that she had not mentioned in her statement which was incorporated in the FIR and which has been reproduced in eKienso above, even the names of P.W. Maqbul and Muhammad Ali as eye witnesses. Nor had the alleged eye witnesses mentioned toy her namely. Shah Muhammad and Muhammad Sadiq i n their police statements mentioned Maqbul and Muhammad Ali as having seen alleged rape being committed. However, in her direct complaint Mst. Sharifan fur the first time mentioned that Maqbul and Muhammad Ali had seen the appellant running away. During the trial they claimed to be eye witnesses and further that their statements had been recorded by police which assertion was belied by the record. 11. The very fact that the learned trial court did not believe the testi­ mony of Mst. Sharifan as against co-accused Mst. Aihhu should have been sufficient to hold that she was not a trust-worthy witness. 12. The prosecution version that although four persons had seen the appellant actually committing rape but had allowed him to escape also makes the story doubtful. He had to tie his shalwar and in the process could have been over-powered. 13. There are serious contradictions in the testimony of the alleged eye witnesses regarding what they actually saw, For instance P.W. Maqbul Ahmad stated that P.W. Shah Muhammad had given piece of cloth which he was carrying on his shoulder to Sharifan to cover-up, but according to P.W. Muhammad Sadiq after the act had been done in their presence Sharifan stood up and tied her shalwar P.W. Shah Muhammad denies that he had given Sharifan a piece of cloth for covering up. 14. Under the circumstances stated, there is doubt created with! regard to the guilt of the accused and the evidence against him io not trust-J worthy. I accordingly allow the appeal and giving the benefit of doubtj !o Shaukat Ali s/o Muhammad Yar Bodla set aside the conviction and acquit him, He may be set at liberty immediately if he is not in custody in connection with any other case. (TQM) Appeal accepted.

P L J 1984 FSC 91 P L J 1984 FSC 91 [ Appellate Jurisdiction 1 Present: MUHAMMAD S1DDJQ, J MUHAMMAD HAFEEZ —Appellant versus THE STATE—Respondent Criminal Appeal No. 140/1 of 1982, decided on 12-12-1982. (i) Prohibition (Enforcement of Hadd) Order (P.O. 4 of 1979}—

Arts- 1! & 27—Drinking liabie to Taazir —Offence of— Conviction for—Challenge to—Analysis of urine by Chemical Examiner not completed before expiry of more than 15 days—Delay in sending sealed packet also not explained by prosecution—Accused not minu­ tely examined by doctor in order to find out symptoms of alcohol —Even medico legal report not put to accused in his statement recorded under S 342 Criminal Procedure Code (V of 1898)-Held: Guilt of appellant not established beyond reasonable doubt. [P. 93] A,B&I> <ii) Prohibition (Enforcement ef Hadd) Order (P.O. 4 of J979) —

Arts. 11 & 12—Drinking liable to Taazir— Offence of—Medical Officer—Examination of accused by—Doctor in his medico legal report referring only to bad smell coming from mouth of appellant— Held : Medical Officer to be required to examine accused more minutely in order to find out symptoms of alcohol. [P. 92] B <iii) Criminal Procedure Code (V of 1898p—

S. 342—Accused—Examination of—Held : Facts or circumstances against accused person to be relied upon by rosecution put to such accused (in order to offer him opportunity) to explain same. [P. 92] C Mr. Tariq Azam Ch., Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Date of hearing : 12-12-1982. JUDGMENT This is an appeal under Article 27 of the Prohibition (Enforcement of Hadd) Order 1979 (hereinafter referred to as the Order), against the judg­ ment of Mr. Nasrullah Khan, Magistrate 1st Class, Islamabad convicting Muhammad Hafeez, appellant under Article 11 of the Order and sentencing him to undergo R.I., for a period of three years'. 2. In support of its case the prosecution produced 4 witnesses. H.C. Walayat Hussain (P.W. 1) recorded the formal first information report am Shah (P.W. 3) is the Investigating Officer in this case. According to him at 12 night on 21-1-1981, he was on gusht duty alongwith some Constables at Kak bridge. He found the present appellant in the state ot intoxication. He found that smell of alcohol was coming from the mouth of the appellant. He prepared Nakshah Makhmoori () (Ex. P C.) and sent the appellant to Hospital for his medical examination. On receipt of medical report (Ex. PB), he prepared the site plan and recorded the statements of the witnesses under Section 161 Cr.PC. After completion of the investigation Le submitted the relevant papers to S.I., Muhammad Afzal (P.W. 4), who verified the investigation and submitted the challan before the Court. The appellant was tried by the Magistrate 1st Class, Islamabad , who convicted and sentenced the appellant as mentioned above. 3. Hence this appeal. 4. I have heard at length the counsel for the parties and have also perused the entire material available on the record. 5. II js contended by the learned defence counsel that the report of the Chemical Examiner (Ex. P.E.), can not be used by the prosecution against the appellant. According to the report (Ex. P.E.) one sealed bottle •containing urine was despatched by the Medical Officer, Central Govern­ ment Poly Clinic, Islamabad on the 20th January 1982, and the same was received in the office of the Chemical Examiner, Lahore oa 2nd of February, 1982. There are two defects pointed out regarding this report. The record is completely silent as to where this sealed packet remained between 20th of January and 2nd of February 1982. The prosecution. has not produced any witness to show where and by whom this packet was kept in safe custody. The report of the Chemical Examiner shows that it was carried to the office of the Chemical Examiner by Constable Munir Ahmad No. 645. Even this Constable has not been produced by the prosecution. The delay of about 15 days in sending this packet has also not been explained by the prosecution. The other defect pointed out about this report is that after a period of about 15 days the urine contained in a sealed bottle, bacteria can cause fermentation in a hot country like Pakistan which can give false high alcohol content. Reliance in this behalf is placed upon the following passage from Modi's Jurisprudence and Toxicology Twentysecond Edition page 657 :— "However it is essential that the urine should be collected in a sterile, chemically clean screw capped bottle with a preservative as in warm weather bacteria can cause fermentation when kept at room tempera­ ture for some days and give false high alcohol content." According to Taylor 's Principle and Practice of Medical Jorisprndcoce (page 196 Vol : II) analysis of urine must be completed within 5 days. Confronted with this situation the learned State counsel argues that even if the report of the Chemical Examiner is kept out of the consideration the conviction of the appellant can still be maintained on the basis of the 'medico legal report. According to him Doctor Khursheed Ahmad Khan Afridi (P.W. 2) had medically examined the appellant on the same night and in his opinion bad smell of alcohol was coming from the mouth of the appellant. The doctor's report is contained on the application of the Investigating Officer which reads as under :— "Mr. Muhammad Hafeez has been medically examined. He has odour of alcohol (wine) from his mouth but he is completely in his senses, He seems to be taken the alcohol at the time of examination." Sd/- Dr. Khursheed Ahmad 20-1-1982 A perusal of the above so calied medico legal report shows that the doctor has referred only to bad smell which was coming from the mouth of the appellant. As an expert, Medical Officer, he was required to examine the accused more minutely in order to find out the symptoms of alcohol. For example, he should have seen his eyes, gait and staggering etc. Another serious infirmity pointed out in the prosecution case is that so called medico legal report has not been put to the accused in his statement record­ ed under Section 342 Cr.P.C, Jt is well-settled now that if prosecution relies upon any fact or circumstance against the accused person, the same should be put to him so that he may explain the same. The learned State counsel about this aspect of the case, has argued that the case should be remanded to the trial Court with the direction to proceed from the point of error. In this behalf he has referred to two Criminal Appeal No. 156/1 of 1981 and Criminal Appeal No. 66/1 of 1982. 6. After taking into consideration the relevant facts and circumstancesr of the case I have reached the conclusion that the prosecution has naw> established the guilt of Muhammad Hafeez, appellant beyond reasonable) doubt. I feel that it is not a fit case for remand. Accordingly, giving benefit of doubt to the appellant, I accept this appeal, set aside the convic­ tion and sentence of the appellant and acquit him. He shall be released forthwith if not required in connection with any other case. .(TQM) Appeal accepted.

PLJ 1984 FSC 94 PLJ 1984 FSC 94 [Appellate Jurisdiction) Present: AFTAB HUSSAIN, Chairman, Ch. MUHAMMAD SIDDIQUE- & MAULANA MUHAMMAD TAQI USMANI, Members MUHAMMAD ASHRAF—Appellant Versus THE STATE—Respondent Cr. Appl. No. 72/1 of 198!, decided on 25-7-1981. <i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10 (2)— Zina— Offence of—Proof of—Both appellants recovered from same house—Held : Recovery of both appellants from same house by itself, not to prove Zina. [P. 96] A (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

-S. 10 (2)— Zina —Offence of—Appellant No. 2 obtaining ex parte decree for dissolution of marriage against complainant and marrying appellant No. 1 before expiry of 90 days period as required by Muslim Family Laws Ordinance (Vlll of 196S)—Appellants having no information about illegality of marriage—Held: Marriage between, appellants (even) if not legally valid, benefit of doubt to be given to appellant—Appellants, held further, not to be held guilty of Zina it" they believed themselves to be married—Application for setting aside ex parte decree submitted after 16 or 17 days of arrest of appellant No. 2 and decree set aside—Held : Ex parte decree set aside after arrest of appellant No. 2 not to benefit prosecution. [P. 96&-91] B &, C pi) Offence of Zina (Enforcement of Hadood) Ordinance (VII ©f 1979)—

S. 10 (2) read with Offence of Qazf (Enforcement of Hadood) Ordinance (VIII of 1979) S. 14— Zina— Offence of—Trial in— Lian .proceedings—Initiation of Appellant No. 2 after obtaining ex parte decree for dissolution of marriage against complainant, marrying Appellant No. 1—Accusation of living in adultry against appellant No. 2 in FIR by complainant—Complainant not confronted with :$tatement in FIR as required by S. 145 of Evidence Act—Statement by complainant made before trial Court not accusing appellant No. 2 of offence of commission of Zina with appellant No. 1— Record not showrng that complainant ever accused appellant No. 2 of Zina before trial Court—Proceedings u/s 14 of Ordinance, held, not to be taken. |Pp. 98 & 99] E, F & H iy) Federal Shariat Court —

Jurisdiction of—Held : Federal Shariat Court , being appellate Court in Shariat cases to have same powers to decide cases as be vested in trial Court—Case for proceeding under S. !4 of Offence of Qazf (Enforcement of Hadood) Ordinance (VIII of 1979) made out but trial Court failing to take action—He!d : Shariat Court to be competent to proceed under S. 14 of Ordinance. [P. 98] D (v) Zina—

Offence of—Illicit relations—Extent of—Held : Persons having illicit relations may not stoop so low as to commit Zina and thus their action may fall short of that offence. [P. 99] G Mr. Ahmad Raza Qasuri, Advocate for Appellant. Hafiz S.A. Rahman, Advocate for State. Mian Sher Alam, Advocate for Complainant. Date of hearing: 25-7-1981. JUDGMENT Aftab Hussain, Chairman.—This is an appeal filed by Mohammad Ashraf and Mst. Ghulam Fatima appellants against the order of Mian Habib-ur-Rehman, Additional Sessions Judge, Gujrat dated 27-4-1981 bv which he found both of them guilty under Section 10 of the OTence »t" Zina (Enforcement of Hadood) Ordinance, 1979 and sentenced each of them to 7 years R.I., 10 stripes and Rs. 1,000/-, as fine in default of payment of which the defaulter was directed to suffer one year's R.I. more. 2. On the 25th of March, 1980, a First Information Report of the abduction of Mst. Ghulam Fatirna by Mohammad Ashraf and of the commission of Zina by them was recorded at Police Station Dinga at the instance of Bahadur Khan., P.W.I husband of Ghulam Fatima appellant. According to this report Ghulam Fatima was abducted about a month ago. Mr, Amjad Hussain Shah, Sub Inspector, P.W. 4, who was posted as Assistant Sub Inspector at Police Station Dinga at the relevant dme recove­ red Mst. Ghulam Fatima appellant from the house of Mt&ammad Ashraf appellant situated in village Auchaili, Tehsil Khosbab. Both these appellants admittedly produced some papers before theAssistant Superin­ tendent Police who verified the investigation. These documents have been proved on record as Ex. D. A. and D.B. Ex, D.A. is the ex pane decree for dissolution of marriage passed in favour of Mst. Ghulam Fatima on the 27th of October, 1979 about 5 months before the registration of the Criminal Case. Ex. D. B. is a statement dated 27-2-1980 made by Mn, Ghulam Fatima before the Magistrate Choorkana from which it appears that at time i.e. one month and 8 days before the registration of this case she claimed that she had obtained divorce from Bahadur Khan appellant and she wanted to marry Mohammad Ashraf. 3. The prosecution examined Bahadur Khan, husband of Mm. Ghulam Fatima as P.W.I., Mst. Aisha Bibi, mother of Bahadur Khan as P.W.2, M6hammad Hussain, a neighbour of Bahadur Khan as P.W.3, and Mr. Amjad Hussain Shah, Investigating Officer, as P,W. 4. Bahadur Khan stated that about 11 months before his statement which was recorded on 14-1-1981, Mohammad Ashraf had taken away his wife Mst. Ghulam iFttima during his absence on the pretext thai her father was ill. He himself came to his house on receipt of letter from his brother-in-law Mohammad Zubair Khalid informing him of this event and lodged the report Ex. P.A. with the Police. He further stated that when the Police arrested her wife she filed a suit against him for the dissolution of marriage in the Family Court at Joharabad which was decreed ex parte but on receiving information about the decree he filed an application (Ex. P,B.)- for setting it aside on the 12th of April 1980 which was allowed on the 7th of May, l9SO(vufeEx. P.C.). Mst. Ghulam Fatima filed an appeal against it which was dismissed by order Ex. P. D. dated 27-11-1980. 4. Mst, Aisha Bibi, P.W. 2, supported P.W.I and claimed to be a witness of Mohammad Ashraf having taken away Mst. Ghulam Fatima 11 months before. She was supported by Mohammad Husiain P.W.3 who stated that he had seen Mohammad Ashraf taking away Mst. Ghulam Fatima and on his inquiry from Mst. Aisha Bibi wai told that she was being taken away to the house of her father because the latter was ill. 5. In their statement under Section 342 Code of Criminal Procedure, the appellants claimed to have married after divorce was obtained by Mst. Ghulam Fatima from the Family Court. Mst. Ghulam Fatima however, stated that she had not yet gone to the house of Mohammad Ashraf inspite of her marriage. 6. The appellant produced Mohammad Muzaffar, Secretary Union Council as O.W.I. He stated that the judgment of the Family Court dated 27-10-1979 was received by the Union Council on the 1st of January, 1980 and he had made an entry about its receipt in the Dak Register. He pro­ ved the copy of entry as Ex. D.C. 7. The prosecution version about the abduction is absolutely false and it is clear from the record that the decree for dissolution of marriage had been obtained by Mst. Ghulam Fatima appellant about 5 months before, the registration of the case against her. The prosecution version that she had been abducted about a month before the recording of the First Infor­ mation Report is therefore, falsified. It is further falsified by the statement Ex. D.B., made by Mst. Ghulam Fatima before a Magistrate claiming, that she had obtained the divorce. The learned Additional Sessions Judge, was therefore, right in acquitting Mohammad Ashraf appellant of the charge of abduction. 8. There is absolutely no evidence on record about the commission of Zina or sexual interecourse by Mohammad Ashraf with Mst. Ghulam Fatima . The inference about the Zina has been drawn by the learned Additional Sessions Judge from the fact of recovery of both the appellant from the same house but that by itself would not prove Zina 9. It is in the evidence of D.W.I Mohammad Muzaffar, that the information about the dissolution of marriage was received in the Office of the Union Council on the 1st of January, 1980. Even if it is held that the Talaq could be effective only after the expiry of 90 days period from this date, as provided by Section 7 of the Family Laws Ordinance and the marriage dated 29-2-1980 between the two appellants was not legally, valid, the benefit of doubt shall have to be given to the appellant since there i nothing on the record to show that they had any information about the illegality of the said marriage on that ground. They cannot be held guilty of offence of Zina if they believed themselves to be married. It may be clarified that the application for setting aside the expane decree was submit­ ted on the 12th of April, 1980 about 16 or 17 days after the arrest of th .appellant. In view of this the latter event of the decree being set aside! 4sou!d not benefit the prosecution. There was a fit case for acquittal of thc| c appellants. 10. This case was heard on the 6th of July, 1981 since it appears from the First Information Report that Bahadur Khan P.W.I, had accused Ghulam Fatima of living in adultry with Mohammad Ashraf. We directed the female appellant as well as her husband to appear before us to enable us to take proceedings under Section 14 of the Offence of Qazaf (Enforce­ ment of Hadd) Ordinance, 1979 diich enjoins upon a Court in a case of such accusation before it to give oath to both the husband and wife. In case the wife takes the Oath as provided there her marriage should be dis­ solved. This Sectioa is as follows : Sectioa: 14 (1) When a husb^jjd accuses before a Court his wife who is " muhsan within the meaning of section 5 of zina and the wife does not accept the accusation as true, the following proceduie of lian shall apply namely :- (a) the husband shall say upon oath before Court : •'! swear by Allah the Almighty and say I am surely truth­ ful in my accusation of zina against my wife (name of wife)" and, after he has said so four times, he shall say : "Allah's curse be upon roe if I am liar in my accusation of Zina against my wife (name of wife)" ; and fb) the wife shall, in reply to the husband's statement made is accordance with clause (a), say upon oath before the Court : "I swear by Allah the Almighty that my husband is truely a liar in his accusation of Zina against me" ; and after she has said so four times she shall say ; "Aiiafa's wrath be upon me if he is truthful in his accusation of Zina against me." <2) When the procedure specified in sub-section (1) has been completed, the Court shall pass an order dissolving the marriage between the husband and wife, which shall operate as a decree for dissolution of marriage and no appeal shall lie against it,, <3) Where the husband or the wife refuses to go through the procedure specified in sub-section (1), he or, as the case may be, she shall be imprisoned uatil- (a) in the case of the husband, he has agreed to go through the aforesaid procedure ; cr 12. Section 8 has no application to the proceedings under Section 14 since the latter Section enjoins upon the Court before which the accusation of oflence of Zina is made by the husband to take proceedings suo-moto. However it shall transfer the case if the matter be one under Section 14 (4) to a Sessions Court. The last argument of the learned counsel is not there fore, correct. 13. Similarly, the argument that the appellant was not proved to be a Muhsan within the meaning of Section 5 of said Ordinance is also without merit. Explanation (1) of Section 5 defines Muhsan as meaning sane and adult Muslim who either has had no sexual intercourse or has held such intercourse only with his or her lawfully wedded spouse. Thus if a person is proved to have committed intercourse with & person other than the law­ ful spouse he is not Muhsah. We have already held that the offence of Zina is not proved against the appellant. It cannot be therefore, doubted that she is a Muhsan within the meaning of Section 5. 14. The argument of the learned counsel about the exclusive jurisdiction of the Additional Sessions Judge to the exclusion of the jurisdiction of the Court, has not impressed us. Since this Court is seized of this appeal, it has the same powers to decide this case which are vested in the trial Court, Consequently, if a case for procee­ ding under Section 14 is made out before the Additional Sessions Judge in case of his failure to lake action this Court would be competent to proceed under Section 14. 15. The first argument of the learned counsel however, has force, It is only in the First Information Report that an accusation of Z/miwas made that the contents of that document cannot be read except to the extent of confronting the maker with the First Information Report so as to contradict him. It is not open to this Court to take into consideration the contents of the documents particularly, when Bahadur Khan was not confronted with that portion as required by Section 145 Evidence Act. It cannot also be said to be a statement of accusation made by the husband before the Court of the Additional Sessions Judge about the appellant Ghulam Fatima commit­ ting Zina. 16. The only statement which is required to be taken into considera­ tion for this purpose is the statement made before the Court but in that statement the complainant Bahadur Khan as F,W. ! did not accuse Mst. Ghulam Fatima of the offence of commission of Zina with Mohammad Ashraf. He only said that the appellants had illicit relations with one another. In cross-examination, he stated that he had not seen the appel lants in a compromising position nor anybody had seen them in such position. 17. The learned counsel for the appellants contended that the illicit relations in the circumstances of the case would mean actual cotnmiision of sexual intercourse. We cannot agree to this .because persons having illicit relations may not stoop so low as to commit Zina and thus the action may fall short of that offence. In view of this there is nothing on record to suggest that Bahadur Khan ever accused Mst. Ghulam Fatima of Zina .before the Additional Sessions Judge. The proceedings under Section 14 canuot be taken and are consequently dropped . 18. The appeal is accepted and the appellants are acquitted. They shall be released forthwith if not required in any other case. (Aq. By.) Appeal accepted.

P L J 1984 FSC 99 P L J 1984 FSC 99 [Original Jurisdiction] Present : AFTAB HUSSAIN, C.J., ALI HUSSAIN QAZILBASH, MUHAMMAD SIDDIQ & MALIK GHULAM ALI, JJ In re : The Pakistan Armed Forces Nursing Act, 1952 etc. Shariat Shariat Suo Motu Nos. 84/82, 85/82,JOO/82 & 160/82, decided on 13-10-1983, (i) Constitution of Pakistan, 1973—

Art. 203-D read with Pakistan Army Act (XXIX of 1952), Pakistan Air Force Act (VI of 1953) & Pakistan Navy Ordinance (XXXV of 1961)—Laws relating to forces— Hadd punishment—Provi­ sions regarding—Held : Hadd punishments having been specifically promulgated and fixed by Quran and Sunnah, same necessarily to be provided in laws relating to forces—Held further : Offences under Hudood Ordinances to be competently tried by Courts Martial, Special Military Courts or even by Summary Military Courts and Army Officers may be vested with powers of Sessions Judge or Magistrate, [Pp. 112 & 120] G & X (ii) Constitution of Pakistan, 1973— Art. 203-D read with Pakistan Army Act (XXIX of 1952), Pakistan- Air Foice Act (VI of 1953) & Pakistan Navy Ordinance (XXXV of 1961)—Laws relating to forces—Equality before law—Applicability of principle of—Held : Provisions of Taazir in four Hudood Laws to be made part of laws relating to forces on basis of equality before law and equu! treatment of law—Held farther : Legislature to be com­ petent to make Taazir sentence more severe to offender while on active service by adding sentence of dkraissal as part of departmental action. [Pp. 112 & 113] J & K (Hi) Constitution of Pakistan, 1973—

Art. 203-D read with Pakistan Army Act (XXIX of 1952). Pakistan Air Force Act (VI of 1953) & Pakistan Navy Ordinance (XXXV of 1961)—Laws relating to forces-—Right of appeal—Requirement of—­ Held : Holy Prophet himself having acted as Appellate Court m matters of dispute inter alia against orders of Commander mnd estab­ lishment of appellate courts being also necessary on principle of equality, such courts to be set up to hear appeals against convictions under Hudood Laws as well as against their convictions under lawsrelating to forces—Held farther : Petty punishments to be compatently made subject of revision only. [Pp, 115 & 120] L. M & Y. <jt) Constitution of Pakistan, 1973—

Art. 203-D read with Pakistan Army Act (XXIX of 1952), Pakistan Air Force Act (VI of 1953) & Pakistan Navy Ordinance (XXXV of 1961)—Laws relating to forces—Convict sentenced under—Right of appeal—Requirement of—Held : There being no justification for dis­ crimination between civilian convict and convict sentenced under laws relating to forces such laws to be nece, warily so amended as to pro­ vide for appeals against orders of Court Martials—Held further : Mere fact that Branch of Judge Advocate-Genera! acts impartially and justly by itself to be no substitute for appeal in which appellant to have right to be heard before decision of appeal. [Pp. 117 & 118] R, S & T <t) Constitution of Pakistan, 1973—

Art. 203-D read with Pakistan Army Act (XXIX of 1952), Pakistan Air Force Act (VI of 1952) & Pakistan Navy Ordinance (XXXV of 1961) Laws relating to forces— Laws of Qisas and Diyat —'Introduc­ tion of—Held : Laws of Oisas and Diyat to be introduced in Saws re­ lating to forces, [P. 119T V PLD !980 FSC S eef. <ti) Constitution of Pakistaa, 1973-

Art. 203-D read with Pakistan Array Act (XXIX of 1952), Pakistan Air Force Act (VI of 1952} & Pakistan Navy Ordinance (XXXV of 1961)—Laws relating to forces—Pardons, remission and suspen­ sion—Provisions regarding—Held : Clarification to be made that •chapter relating to pardons, remission and suspension not to apply .to cases in which Hadd sentence be awarded—Held farther : In case of law regarding Qisas and Diyat being enforced provisions of chapter also not to be applicable to such sentences. fP. 119 & 120] W &ZZ <tii) Pakistan Army Act (XXIX of 1952)—

S. 154, Pakistan Air Force Act (VI of 1953)—S. 190 & Pakistan Navy Ordinance (XXXV ofl96l)—S. 165 read with Constitution of Pakistan, 1973—Art 203 D --Property of deceased persons—Disposal •of— Held: Provisions about property or money authorising prescribed person to pay without requiring inte: alia succession •certificate, probate, etc. suffering from deficiency of same having not protected rights and interest of other legal heirs, necessary amend­ ments to be made so as to make it eacumbent to take bond from next of kin undertaking to distribute money taken by him from assets of deceased among ail Muslim heirs. [Pp. 119 & 120] U & Z (trui) Islaiaic Law & Jurisprudence—

Ameer—Commands of—Disobeyanee of—Held : Command of Ameer obviously contrary to Quran and Sunnah act to be disobeyed by Muslims. [P. 106] A Tarikh-e-Tubari (Vol. II, p. 282) ; Hajrat-ui-Sahaba by Maulana Muhammad Yousaf (Vol. II, p. 72) ; Fathul Bar! (Vol. 13, p. 121 & Islam-ka-Nazam-i-HnkBinat by Maulana Hamid-ul-Aasari (p. 381) ref, <ix) Islamic Law & Jurisprudence —

Commander of Army—Position of—Held : Commander of Army ' to be considered to be delegates of powers of Imam. [P. 107] B <x) Islamic Law & Jurisprudence—

Commander of Army—Functions of—Held : Commander of Army to be required to (/) guard agasnst surprise attack by enemy (11) select good site for his camp (///) ensure supply of necessary provisions (n>) be watchful about strategy of enemy, (w) maintain order and dis­ cipline ; (vi) send for detachments ; (vii) encourage his army (viii) seek counsel and advice and {«) keep mao under bis com­ mand subject to Sharia. [P. 107 & 108] C (xi) Islamic Law & Jurisprudence—

Commander—Duties towards army personnel and enemy—Held :Duties of Commander in Muslim State viz-a-viz his army personnel and in respect of army being much more extensive as compared to those of Commander-in-Chief of secular State, such Commander to be requested to look to not only material welfare and well being of personnel but also to their morals—Troops not to be allowed to commit breach of trust, treachery or mutilate anybody or kill old man, minor or woman, to destroy church, burn cultivation or to take even straw for fodder without payment—Held further : Duties of Commander being much more onerous, implicit obedience to his orders to be required more emphatically in case of Commander of Muslim Army. [P. Ill] D <xii) Islamic Law & Jurisprudence—

Commander—Disobedience to—Held : Disobedience being offence, Commander to be competent to punish (for same) though generously his behaviour not to be severe. [P. Hi] £ Ehkamus Sultaniya, by Mawardi (Urdu pp. 85-81) & Ebkamns Sultaniya by Abu Yaala (Pp. 45-47) ref. (xiii) Islamic Law & Jurisprudence—

Commander—Functions of—Held : Position of Commander being that of delegate of Imam or Amir, Commander to be bound to dis­charge functions of Imam not only in respect of guarding country against enemy attacks but also that no one should commit act prohi­ bited by Allah nor should rights of any human body be tempered by him—Held further : Commander to be bound in Sharia to implement inter alia cases of Hadood. [Pp. 111 & 112] F <(xiv) Islamic Law and Jurisprudence— -—-Discrimination—Rights—Denial of—Held : There being no discri­ mination in administration oi justice between man aod man and politically every Muslim being member of same Umma, oo person to be denied any right nor any judicial right to be reserved for any particular group in consideration of wealth, purity of blood, caste or colour. [P. 116] P <xv) Islamic Law aod Jurisprudence—

Equality—Principle of—Held : Principle of equality to be dednci-- ble in no uncertain terms from Hcly Quran and Sunuah,, [P, 115] N (xt!) Islamic Law and Jurisprudence— -—Equality before law—Principle of—Held : Equality before law and equal protection of iaw being main principle inherent in Islamic law and polity, such fundamental principle of Islam not to be igno­ red. [P. 116] Q (r»ii) Islamic Law and Jurisprudence—

Head of State—Immunity from prosecution—Claim of—Held : Sharia having made no distinction between citizen and head of State, such head of State to claim no immunity from prosecution or from appearance in court during tenure of his office. [ P. 116] (xt!!!) Hudood Laws—

Sentence of Tazir —Provisions regarding—Held Difficulties, having been traced by Qazis in obtaining and collecting evidence necessary for passing Hadd sentence, alternative sentence of Tazir provided in Hadood Laws with object that person committing offence should not go scot free and rights of Ummabe also not left unprotected. [P. 1 12]H Brigadier Imtiaz Ahmad Waraich, Judge Advocate General Pakistan Army G.H.Q. Rawalpindi. Air Commodore M. Aslam Beg, Judge Advocate General Pakistan Air Force. Peshawar. Commodore Hafiz Abdul Majid Malik, Judge Advocate General Pakistan Nary, Islamabad . JUDGMENT Mr. Iftikhar Hassain C haudhury, Standing Counsel for the Federal Government. Date of headng : 5/6-4-1983, Aftab Hussain Chief Justice.—The Pakistan Army Act, 1952 and the Pakistan Air Force Act, 1953 were notified for public opinion on the question of their repugnancy to the Quran and Sunnah in various News­ papers of the country on 15-11-1982. While examining these Laws, it was found that the provisions of the Pakistan Navy Ordinance, 1961 were in part materia with the above mentioned two Acts relating to two other services, while Armed Forces Nursing Services Act, 1952 applied the provi­ sions of the three Acts to officers employed in the different services. It was, therefore considered advisable to examine the four laws together. 2. The laws relating to the Army, Airforce and the Navy provide for the organization and government of the three forces and establish judicial hierarchy different from the hierarchy of the civilian Courts. In this sepa­ rate judicial system the offences are triable through the Courts Martial which can try them and their procedure is described in detail. One impor­ tant feature of the procedure is that appeals are completely barred against the findings of the Courts (S. 133 Army Act, S. 162 Air Force Act and S. 140 Navy Ordinance). This deficiency is sought to be repaired with the provisions of confirmation of sentences by higher authorities,and of Revision/ Review of finding and sentence (Chapter X, Army Act, Chapter XII Air Force Act and Chapter XII Navy Ordinance). Very wide powers of pardon, remission or commutation of sentence have been conferred, on the Govern­ ment, the Chief of Staff and the officers empowered in this behalf (S. i43 Army Act S. 177 Air Force Act and S. 153 Navy Ordinance). 3. The Judge Advocate Generals of the three services i.e., The Army, The Air Force and The Navy were invited to assist the Court and were given a hearing. Mr. Iftikhar Hussain Chaudhary the counsel for the Federal Government also argued the matter. 4. The main points mooted out before the Judge Advocate Generals, were as follows:— (1) Whether the offences and their sentences, whether of Huddod or Tazir in the four Hudood Laws may not be incorporated in these laws. (2) Whether right of appeal should not be given to the convicts under these laws and (3) Whether in cases in which the prescribed person pays to a next of kin money under S. 154 of Army Act, S. 190 of the Air Force Act and S. 165 of the Navy Ordinance, it may not be made necessary for him to obtain a bond from the payee undertaking to distribute that money amongst the lega! heirs of the deceased. 4. The Judge Advocate General of Pakistan Navy agreed with all these points. He filed on 24th February, 1983 a petition that the Naval Headquarters had already prepared a draft for the amendment of the Pakistan Navy Ordinance enabling Court Martial toaward Hadd punishment in an appropriate case and for providing an appeal in cases in which Hadd punishment had been awarded. Regarding the third point it is stated in that Petition, that the objective can be achieved by the amendment of the Pakistan Navy Rules 1961, requiring the person receiving the property to execute a bond in the presence of the Commanding Officer to the effect that Property shall be distributed amongst legal heirs according to the Shariat Laws. On a query from me he submitted that after the Second World War orders of conviction passed by Court Martials were made appeal­ able and Appellate Courts were established in America as well as United Kingdom for hearing of such appeals. 6. The Judge Advocate General of the Army, however, raised an objec­ tion that there is no provision of appeal in Sharia and moreover if appeals against conviction other than those under the Hudood Ordinances are provi­ ded, it will affect the discipline of the Army. He dealt at length on the importance of the Office of the Judge Advocate General and its role ensuring that complete justice may be meted to all and sundry and many a persons arc acquitted on the report submitted bv that office during the Revisional proceedings and proceedings of confirmation of sentence. He also opposed the provision about the bond and said that this might increase the work load of the Army Officers for the small amounts which are given out of the fund of the deceased to their next of kin for relieving their distress. 7. The Judge Advocate Genera! of Pakistan Air Force agreed with the Judge Advocate General of the Army. 8. We are cognizant of the fact that the Army can function only if discipline of the strictest kind is maintained in the organization and it is ensured that orders of the superior officer are implicitly obeyed without any hesitation. Any disobedience must, therefore, be followed by strict disciplinary action and by subjecting the offender to punishment. To meet this end the superior officers must be vested with the requisite authority, In some cases this objective can be achieved by summary punishment of simple nature, which may be administered without any unreasonable delay. Such punishment must be provided in every law goverainig the government of military personnel to whatever branch of the Military, Army, Air Force and the Navy they may belong. 9. Discipline also adds to the efficiency of the Force which should be the ideal of all Armed Forces. It is to achieve this that the Military Management is always separated from the Civil Management. Law governing the military is a specie by itself and is different from the Civil and Municipal Law. 10. The discipline of the Armed Forces cannot be achieved simply by punishment and compulsion. Every service man for this reason is made conscious during his training and education, of his duty to his home land and that this duty cannot be discharged without implicit obedience of the Commander's Order. . 11. In Islam also strict discipline was maintained among the Mujahids-and the best illustration of this is furnished by the withdrawal of Command from Khalid Bin Waleed by order of Hazrat Umar and appointment of Abu Ubaida as the Commander of the Muslim'Army. The Muslim armies were on active service at that time. Khalid Bin Waleed did not raise any objection to his removal and thereafter served in the Army, which he once commanded, as ordinary Mujahid under Abu Ubaida (See Tari/ch-e-Tabari Vol : II, Page 282). 12. There is a direct Quranic order in respect of obedience in Q. 4 : 59. "O ye who believe ! Obey Allah, and obey his messenger and those of you who are in authority." The injunction to obey those "of you who are in authority" is with the object of generating sense of discipline in the Muslim Ummah for all times to come. After the Holy Prophet the responsibility of implementation of the laws of the Quran and the Sunnah and of leading the Muslim Ummah according to Sharia rests upon the persons in authority among the Muslims. There is no doubt that implementation of law in letter and spirit depends upon observance and obedience by those who are governed by it. No good can be achieved from any order issued by a person in authority if it is ignored or disregarded by the persons to whom it is issued. If each indi­ vidual is allowed tc act according to his own judgment and leanings it will be the end of the Ummah or state or a centralised body. Condona­ tion of disobedience is fatal to the inculcatic of the sense of discipline among the people which is the corner stone of the Islamic polity The Holy Prophet was so emphatic on the inculcation of the sense of discip­ line in the Ummah that he directed them to appoint from among them­ selves an Ameer even if two or three of them were going on a journey. 13. There are a member of traditions which make it inccumbent upon the Muslims to obey the person in authority. It is reported from Hazrat Umar that the Holy Propjiet addressed a group of his companions and enquired : "Do you not know that I am undoubtedly the Messenger of AUah and have been sent to you". The companions said : "There is no doubt about it and we are witnesses that you are a Messenger of Allah". The Holy Prophet said : "Do you not know that the truth is that whoever obeys me, obeys Allah and obedience to me is rendering obedience to Allah". They replied affirmatively, "undoubtedly rendering obediesce to you amounts to rendering obedience to Allah", The Prophet then said "• "Yes, undoubtedly to obey me amounts to obeying Allah and obedience to me lies in obedience to your Ameers (persons in authority). If your Ameers offer prayer while sitting you should also follow . them and offer your prayer similarly". Hayatal Sahaba by Maulana Muhammad Yousuf of Vol: II page 72). 14. It is reported from Hazrat Umar that Holy Prophet said that you obey your Imam even if he be a noseless negro slave forbear if he causes loss to you and comply with his orders. Endure patiently if he deprives you of gifts or is cruel to you. But if he shows his intention to interfere in your religion, then tell him that you would shed your blood for the preser­ vation of your Deen (faith) (ibid page 74). 15. It is reported from Anas Bin Malik that the Holy Prophet said ; obey (your Ameer) even though he be a negro slave with a small head". Fstnl Bari, Vol : 13, page 121). 16. Ibn-e«Abbas is reported to have said that the Holy Prophet observed that whoever sees in his Ameer anything which he does not like, should be tolerant. A person who isolates him from the Ummah even in ordinary things, and dies in that state, dies the death of a person in the age of jahilya (Fatiittl Bari Vol : 13, page 121). 17. Afadulla bin Omar said that the Holy Prophet said that obedience to the Ameer is the duty of a Muslim in all matters whether he likes them or dislikes them. (However) there is no obedience in Commands involving. sin. If the Ameer passes an order for commssion of sin, no obedience tothat order is due to them (Fathul Bari Vol : 13, page 121). 18. The reference to a negro slave with small head or with his nose cut suggests that an Ameer should be obeyed even if his appearnce and his earlier status may rouses contempt or dislike. The duty to obey is subject to one exception only. 19. Thus all orders of the Imam which do not violate ihe Injunctions of the Quran and the Sunnah must be obeyed (Isiara Ka Nlzxm-i-Hukumat by Maulana Hamid-al-Acsan, page 381). 20. A Muslim should not falter in his obedience to the person iz» authority, and should resign himself to all injustices and tyrannies fromhim for so long as there is bo interference in religion and no order for commission sin is given to him. 21. The only exception when disobedience is allowed may, rather enjoined— is an order to commit sin. In this respect there is a difference between the degree of obedience to the Prophet and obedience to a person, in authority. The obedience to the Prophet is unconditional Take whatever comes to you from the Prophet and restrain yourself from what is prohibited by him). All the orders and commandments of the Messeager of Allah are binding on the Ummah in, perpetuity, but obedience to theorder of any other person in authority is subject to the above exception, («&! JL^fc ij arda said that before Jihad, the Muslims should be virtuous in their action because victory is dependent upon their good actions (ibid Mawardi, pages 83-85 and ibid Abu Ya&la, pages 44-45). 31. The details of the duty of the Commanders are found in "Mnsiin. Conduct of the State" by Dr. Hamiduilah in Appendix-A under the heading 'Instructions to the Commander'. Some of these instructions relate as to how a Commander should deal with the enemy in case of fight and in case of surrender, but I will refer to such instructions only which apply tothe army personnel, and which were given by the Prophet, Hazrat Abu Bakr, Hazrat Omar and the Abbasids Caliphs. Instruction By The Holy Prophet. 32. The Holy Prophet said to Abdur Rahman bin Auf, at the time of hi appointment as Commander 'O son of Aufe take it. Fight ye all in the path of God aad combat those who do not believe in God. Yet never commit breach of trust, nor treachery, nor mutilate anybody nor kill any minor or woman. This is the pact of God and the conduct of His Messen­ ger for your guidance'. ( Para 647). Instruction By Hazrat Abu Bakr : 33. Hazrat Abu Bakr said to Ussmah, when he was proceeding against Palestine "People ! stop. I enjoin upon you ten commandments. Remem­ ber them: Do not embezzle, do sot cheat, do not break trust, do not muti­ late, do not kill a minor child or au old man of advanced age or a woman, do not hew down a date-palm nor burn it, do not cut down a fruit-tree, do not slaughter a goat or cow or came! except for food. May be you will passnear people who hive secluded themselves in convents; leave t hemand their seclusion. And if may be that you pass near people who will bring to you disnti of differeru goods. If you eat one after the other, then utter the same of Gf>d o'x user;. And you will meet people the dressing of whose hair looks as if the dtvjj has made a nest on the to» around which they have something like turbans. So pierce them with s>wj>ru '. Then he stood before the Army and said "I en join upon you the fear of God. Do not •disobey, do no cheat, do not show cowardice, do not destroy churches, donot bleed animals, do not cut dowa fruit-trees, do act kill ©Id men or boys or children or women". ( Para 649). Hazrat Abu Bakr similarly gave the following instruction to Y&zid ibn Abi Sufyan while he was proceeding to Syria :— "O Yazid! you will soon arrive in a country where people will bring toyou all kinds of food, so utter the came of God at the beginning »nd at the end. Further, you wii! come across people who have seeladeo tbemselves in convents : leave them and their seclusion. But you will also come across people oa whose heads the devil lias'taken his abodethat is the Shamamisab-so strike their heads off. But do not kill any old maa or woman or minor or sick person or mosk. Do act devas­ tate any population. Do not cut a tree except for some useful purpose. Do not burn a palm tree nor inundate it. Do not commit treachery, do not mutilate, do not show cowardice, and do not cheat. God shall surely give victory to those who help His cause and also to His Messen­ ger, for God is Strong and Powerful. I commit you to tht care of God. and bid you farewell." ( Para 651). Instructions From Hazrat Umar. 34. "Whenever Umar despatched armies, fie en joined upon their commanders to fear God, and then used to say, at the time of handing. over the colours : "With the name of God and with the help of God ! March with the assistance of God and victory. Persevere in right conduct asd endur­ ance Combat, in the path of God with those who disbelieve in God ; yet do not transgress, because God does not love those who transgress. "Do not show cowardice in an encounter. Do iiot mutilate when you have power to do io. Do not cororaif excess when you triumph. Do not kiil an old man or a woman or a .minor, but try to avoid ihem at the time of the encounter of the two armies, and at the time of the heat of victory, and at the time of expected attacks, Do sot cheat over booty. Purify Jihad from worldly gaio. Rejoice in the bargain of the contract ye have made (with God), and that is the great success", (Para 652), Instructions By Abtoasiile Caliphs. 35. The form of instruction given by Abbaslde Caiiphs to the com­ mander of land and sea forces inter alia consisted of the following instruc­ tions : "He has commanded him to have the fear and dread of God in. his inner as well as outward affairs, to act. in his obedience, and to have the test of relations between him and God by means of pure actions and agreeable behaviour And he has commanded him to lake care of his own person in order to have a clean conduct to observe Chereligious duties, to justify the trust put in him, and to believe that there is no might and no power except by God ia each and every of his actions and movemeats. "The task with which the Commander of the faithful has charged him has not been done except ia the hope that he has the capacity, the sufficiency, the terror and the discipline to inspire awe in the minds of evil-doers and mischief-mongers, even as causing proseperity for the people and the country. He has commanded him to abstain from things causing anger of God, from things forbidden by him, from transgressing His injunctions and things : declared by Him as vice, he has commanded him to prevent his troops and his entourage from attempting to oppress any of the subjects or to do him harm through injury, to persuade them to remain always upright, to march on the path of obedience and of striking the enemies of God in the countries, to prepare for them the best of provi­sions and necessities. He has commanded him to behave in the best of manners with regard to his troops and to those who follow him, to be solicitous, of them when sending them in detachments, to parade them frequently in order to find out (the condition of their animals and their weapons : to compel them to keep these (military) things in the best and the finest conditions. For it is in this way that God makes the well-behaving people to be increasingly mindful of it, and the evil-doers to abstain from the mischief. 'He has commanded him not to prosecute anybody on mere accusation or charge unless he be a suspect and a person known for bad conduct ; nor to punish him on mere suspicion unless clear proofs are adduced and manifest indications are produced ; and not to hoid responsible people of good conduct for the crimes of mischief-mongers and evil­ doers. "He has commanded him to give quarter to those who come to him in peace, and not to use it as a means of treachery with regard to them; and to take care not to have the bad reputation of deceiving and using ruses, for this habit would be countered by evasion even of the right­ ful duty. He has commanded him not to pass any defined penalty (Hudood} and not to execute the decision of decapitation and talion for death before obtaining the opinion of the Commander of the Faithful; he should await the reply to act upon and to take cognizance of. "He has commanded him to prevent his troops from staying in the houses of any subject and to participate it alongwith the family of that (subject except if it is by his permission and willingness, and also from trampling on the cultivated fields and making them treaded by animals or rendering them a path to reach his destination. He should not take straw for fodder |from those who possess it except on the payment of the price and the willingness of the owners. ............................. ... .................... (Para 653, pages 306-308) 36. It will be appreciated that the duties of a Commander viz-a-viz his ^.rmy personnel and in respect of the enemy are a lot much more extensive as compared to the duties of a Commander-in-Chief of a secular State who does not care if his troops after victory are on a rampage. He had not only to look to the material welfare and material well being of the personnel but also their morals. He had to take steps to the implementation of the Sharia limits. He had also to see that his roea do not commit any act in respect of enemy which is disapproved or prohibited in ?he instructions given by the Holy Prophet, his companions and later Caliphs and Jhat every one was dealt with justly according to the principles of aaturai justice, He had to be careful that his troops do not commit breach of trust, trea­ chery nor mutilate anybody or kill an old man, a minor or woman, do not destory church or disturb churchmen or hermits, do not burn cultivation,' destroy palm or fruit trees or even inundate them, do not take even straw: for fodder without payment, do not stay in another person's house without willing permission of the owner. He is not to prosecute except those who are in fact suspected of offence and not to execute Hadd punishment of decapitation, and talion for death without confirmation of the sentence by the Caliph. His duty was, therefore much more onerous and though: implicit obedience to the order of Commander is a must generally, but is is required more emphatically in the ease of Commander of a Mus):m' array, 31, Mawardi and Abu Yaala therefore, specifically deal with the duties of army personnel, which are — (i) Safeguarding the rights of Allah and (2) discharging one's duty towards his Commander. 38. ib the first category are included :--- (a) to fight bravely and courageousiy, the enemy even equal to double of their number and not to retreat. (b) to fight in the name of Aiiah and with the inteat that Jihad i.~- not for material uplift or 'well being but is for the gsceadancy of Islam as a Deen (faith) (c) not to misappropriate from the booty even the most trifling thsng and (d) .not to show partiality towards a relative, however near so degree, if he be a polytheist. 39. In. the second category is intrinsically included the complete obedience of the Commander as is enjoined in verse Q. 4 : 59 (obey the person in authority) and it is incumbent upon the members of the forces to obey the Commander in what he directs and in what he prohibits, If he thinks that the Officer or Commander has not taken into consideration . any point of policy or expediency lie can only give him advice but the ulti­ mate decision rests with the Commander. Disobedience is an offence forf which the Commander can punish faim though generally his behaviour shallU not be severe (Efekam us Sultaniya by Mawardi (Urdu) pages 85-9" 1, Ebfcamf jjs Seitaniya by Abu YaaSa pages 45-47). 40. As stated above, the position of a Commander of the Army isip that of a delegatee of the Imam or Amir. Generally he holds what is known as, U cJVj (plenary powen). Consequently one of his functions is that eyery one is his command should act according to the laws of the Holy Quran and the Sunnah. He is bound to discharge the functions of" the imam not only in respect of guarding the country against enemy attack but also that no one should commit an act which is prohibited by Allah nor should the rights of any human being be trampled by him. He is bound in Sharia to implement inter~ttlia the laws of Hudood. 41. Hadd punishment are necessary to be provided in these three Law Irelating to forces since they are specifically promulgated and fixed by thedQaraa and the Sunnah of the Holy Prophet. Offences under the Hudood' •Ordinance may be tried by Courts Martiai. 42. There is a Hadith in which the Holy Prophet said : "Hands should not be cut duriag war" which means that the Hadd sentence can be suspended during actual war. On this basis Imam Abu Hanifa was of the view that when offences are committed by the members of the Forces during war, sentences should not be executed till after return of the Armies lo the Muslim country. (Attaslsri-iJl-Jiaai Islam! by Abdul Qadir Auda, Vol: 1 page 282). 43. In Abu Daud and Nisai, the Hadith is so worded that handswiH isot be cut during journey. Only in Tirnsizi the words "jj-J-" is used. (Fatfaiii Qadeer, Yoi. V page 46). This is, however, for the State to ukeadvantage of this opinion of Imam Abu Hanifa or enforce a different law sn this respect. 44. The next question is whether the State is also bound to enforce the laws of Tozir as provided in our Hudood Laws of 1979. 45. The Laws of Hudood of 1979 provide for sentence of Tazir to a person who has committed any offence described therein as an offence of Hadd, la case the evidence required for passing Hadd sentence is not forth­ coming but the criminality of the accused is established beyond any shadow of doubt from other evidence, ocular or circumstantial. 46. The alternative sentence of Tazir was provided in these laws ot account of the juristic opinions given in their favour on account of the difficulty faced by the Qazis, in obtaining and collecting evidence necessary for passing the Hadd sentence. The principle behind the enforcement o'f alternative Tazir sentence is that the person committing the offence should not go soot-free and the rights of the Ummah are not left unprotected. 47. The provisions of Tazir in the four Hudood Laws have to be made part of the Laws relating to forces on thft basis of equality before law and :qual treatment of law. This principle will be dealt with in connection witb. the law of appeal in Islam. 48. It may bs stated that the three Laws do contain certain provisions about Tazir for the same of similar offences. S. 27 of the Army Act pro­ vides upto 14 years Rigorous Imprisonment for theft; Section 40 of the same Act Jays down -the punishment of theft of Government property or property of either of the three forces upto five years only. But Section 52-of the Air Force Act and Section 63 of the Pakistan Navy Ordinance pro~ vide for the lattei category of theft cases, oaSy long imprisonment. 49. Section 43 of the Army Act provides for the punishment of intoxi­ cation and lays down more severe punishment for those who commit offences while on active service. 50. It discriminates between officers and other ranks. The officer is punishable by dismissal or by such punishment as is mentioned in the Act while members of other ranks with rigorous imprisonment upto six months or with less punishment as mentioned in the Act. 51. The Air Force Act provides for officers the punishment of dis­ missal ; for the others short imprisonment and when offence is committed ia active service, but not on duty, the sentence of six months. 52. The Navy Ordinance in its Section 58 defines intoxication and the criterion for its being an offence is only one's unfitness for the duty or to perform duty or disorderly or unruly behaviour or a behaviour likely to bring discredit in the service. It does not deal with complete prohibition. 53. As regards punishment, Section 59 thereof provides on activeservice or under orders of active service or on duty, for short imprisonment and in any other case, in case of officers, for dismissal and in cases of other sailors, for detention. 54. Section 59 of the Army Act, Section 71 of the Air Force Act and Section 78 of the Navy Act provide for civil offences and lay down that a person governed by any such law committing such an offence under the res­ pective law in or beyond Pakistan shall be guilty of that offence under the Jaw. This provides for reduced sentences for other offences. Offence punishable with death, shall be liable to punishment as provided in the res­ pective law Similarly in other matters also lesser punishments are pro­ vided for. 55. However if the offence of murder, or culpable homicide not amounting to murder or rape is committed against such a person who is not subject to these three laws relating to forces, he shall not be deemed to be guilty of any offence under these laws unless the offence is committed while on active service, or at a place outside Pakistan or a place notified by the Government. 56. The Tazir sentences in the four Hudood Laws are quite severe while those in relation to the service in some cases lean towards triviality. There is no reason why this discrimination be maintained. It is necessary that the Tazir sentences in the four Hudood Laws be made equally applicable to the members of the services though the Tazir sentence to an offender while on active service may be made more severe. The sentence of dismissal as provided may, if the legislature thinks fit, be added as a part of departmental action. 57. The Military Law differs from the general law of the land in res­ pect of the provision!! of appeals. While Section 132, Army Act, Section 162, Air Force Act and Section 140 Navy Ordinance provide for a complete bar of appeal, the criminal law of the country provides at least one appeal except in petty cases (Section 413 and 414 Cr. P. C,). The orders in which, no appeal is provided are also revisable by higher Courts. Where the appeal is to a Court subordinate to the High Court, the latter can interfere with the Appellate Order in exercise of its Revisiona! Jurisdiction. addition, petition for special leave o appeal is competent before the Supreme Court against the order of the High Court and if special leave is granted by the Supreme Court ; the Petition for special leave is converted into an appeal. The Constitution thus provides for another appeal also though it is subject to the permission of the Supreme Court. 58. It was urged by the learned Judge Advocate-General of the Army that in Islam there is no provision of appeal. This argument is fallacious. From the several traditions reproduced above, it may be clear that after the fight was over, in seme cases, the decision of the Commander was challeng­ ed before^the Holy Prophet and he set aside the order of the Commander. There is another tradition which was related by Salem on the authority of his father. The Holy Prophet sent Kha!id-bin-e-Walid to Banu Jaz..na. He invited them to Islam but instead of saying "We embraced Islam", they started joking by saying sabana, sabana (we got out from one religion to another religion). So Khalid started killing them and making them prisoners. He handed over to every person his prisoner and ordered that •every one of us should kil! his prisoner that very day. I (relater) said, "I 'will never kill my prisoner nor any of my companions, will kill his prisoner". Then we came to the Holy Prophet and informed him of the situation. The Prophet raised his hands and said, "Oh Allah ! I am not responsible for what Khalid did in this matter. He said so twice." Fathnl Bari Vol. VIII pages 56-57). 59. There is yet another tradition that two persons came to the Holy Prophet, one of them charged the other that the latter's cow had killed his donkey. The Holy Prophet ordered Hazrat Abu Bakr to decide this case. Hazrat Abu Bakr decided that animals do not incur any liability for their acts. The Holy Prophet then ordered. Hazrat Umar to decide the matter but he decided according to the same principle as enunciated by Hazrat Abu Bakr. Then the Prophet ordered Hazrat Ali to decide. Hazrat Ali asked the complainant whether both the animals were tethered. He replied in the negative. He then asked whether the cow was tied and the donkey free. He again answered in the negative. He then enquired whether he onkey was tied and he cow was free. This was admitted to be the case by both the parties. Hazrat Ali decided that the owner of the cow was liable (for damages). (Adab-ul-Qazi by Mawafai, Vol. VI page 388 printed at Baghdad, 1972). 60. The Hadith amply justifies appellate jurisdiction since the Holy Prophet acted as an Appellate Court by setting aside the judgments of Hazrat Abu Bakr and Hazrat Umar and approved of the judgment of Hazrat Ali. It also justifies the remanding of the ca»e for retrial by the Appellate Court since the Holy Prophet had remanded the matter twice ivhen it was decided first by Hazrat Abu Bakr and.the Hazrat Umar. 61. The Islamic judicial history is very rich rather full of cases in •which appeals were filed against the orders of the Qazis before the Amir, Sultan or Caliph by whatever name the Head of the State be called. 62. The right of appeal also emerges from Q. 4 : 59 in which it is laid down that in case of dispute with the '-^^" (the person in authority) he matter is to be referred to Allah and His Prophet. This reference it nothing but an appeal to the law of the Quran and Sunnab. 65. The above argument of the learned Judge Advocate-General of ihe Army was addressed because no statutory Appellate Court was formed during those days but that itself is no reason to hold against the appellate jurisdiction. The formality may not be there but as stated above, if the Holy Prophet acted as an Appellate Court in matters of dispute interalia against the order of the Commander, no objection can be taken to the establishment of Appellate Courts. 64. The establishment of Appellate Courts in the Army is also neces­ sary on the principle of equality. This principle is deducible in no un­ certain terms from the Holy Quran and the Sunnah. In fact Islam has given the principle of "oljL^" to a world in which the class and group conflicts reigned supreme. 65. The test of equality lies in each Muslim individual being nominat­ ed in the Quran as Khalifat Ullah. (Q. 6 : 165 ; Q. 7 : 69 ; Q. 7 : 74). It is interesting to note that the First Caliph, Hazrat Abu Bakr declined to accept the title of Khalifal Ullah presumably because each individual Muslim is the holder of that title. He adopted the title of Khalifat Rasul Allah. Allah says "O mankind, we have created you from a male and a female" which means that ail human beings are brothers inter se irrespective of any distinction of colour, race or nationality. They are the progeny of the same parents. The outward differences of colour, race, tribes, and nationality are no 0iore than references for mutual introduction and recog­ nition. The sole criterion for superiority of one over the others is piety, nobility and the quality of being God-fearing. Q. 49 : 13 "O mankind ! Lo ! We have created you from a male and a fe­ male, and have made you nations and tribes that you may know one another, Lo ! the noblest of you, in the sight of Allah, is the best in conduct. Lo ! Allah is knower, Aware." This brotherhood between man and man is implied in the following verse : Q. 4 : 1 "O mankind ! be careful of your duty to your Lord who created you from a single soul and from it created its mate and from them twain hath spread abroad a multitude of men and women ......... " In Q. 49: 10 it is specifically stated that "The believers are naught else than brothers. Therefore make peace between your brethren and observe your duty to Allah that haply ye may obtain mercy." 66. There are several traditions of the Holy Prophet in support of this proposition. 67. The Prophet said that -iatJI 6U-IT »'>- ^r^ 1 (People are like the teeth of a comb) (Address at the last Haj of HajjatuMdaa) . 68. This simile is very apt since if the teeth of the comb be of different size or be unequal the hair cannot be combed but the head shall be injured. The simile thus examplifies the effect of inequality too. In the same address the Prophet said "No Arab has any superiority or excellence over a non-Arab and no red-coloured man has any superiority or excellence over any black coloured man, save in respect of piety and fear of Allah." In Sahih Muslim this Hadees is reported in the following words : — "No Arab has any superiority over a non-Arab, nor any non-Arabovcr an Arab nor any white man over a black man, nor a black mat over a white man, save in respect of piety and fear of Allah". This fraternity and equality is not only a matter of form but is indeed a matter of substance. It goes to the extent of equality before law and equal protection of law. In respect of equality before law Sharia does not make any distinction between a citizen and a head of the State. The head of the State cannot claim any immunity from prosecution or from appear­ance in Court during the tenure of his office. There is no discrimination in the administration of justice between man and man. Politically every Muslim being the member of the same Ummah he cannot be denied any right, nor any juridical right can be reserved for any particular group on consideration of wealth, purity of blood, caste or colour. 69. The best example of equality before law and equal treatment and protection of law is furnished by the reaction of the Prophet to a recom­ mendation made by a companion in favour of a woman thief against the imposition of the severe sentence of Hadd. The Prophet said : "By Allah if Fatirna daughter of Muhammad (PBUH) had committed theft, I would have certainly cut off her hand, (agreed) 70. The verse Q, 5 : 32 equates killing of a man with the killing of all mankind and saving of a man with the saving of ail mankind. The laws of Hudood and Taazir are equally applicable to all and the Holy Prophet condemned in the above Hadees about recommendation in the theft case, the ways of the earlier people who had different criteria of punishment for those who were wealthy and influential among them and those who were not and were poor. The relevant words of the Hadees are ; (Jamul Fawaid by Muhammad bin Suleman Maghribi Vol. 1, page 499) : "The Holy Prophet then stood and addressed the congregation and said 'No doubt the earlier people were destroyed as they left unpunished those among them who committed theft but were influential, and im­ posed Hadd on those among them for commitment of theft who were weak." 71. Equality before law and equal protection of law is the main ^"principle inherent in the Islamic law and polity. It is one of the funda- {mental principles of Islam which cannot be ignored. 72. There is provision of appeal in the Criminal Procedure Code aswe!l as in the Hudood Laws. The Supreme Court in addition has the power to grant special leave to appeal. The Constitution further provides for appeals to the Supreme Court against the decision of the High Courts in the exercise of its original jurisdiction. A whole hirarchy of Courts is there to review a judgment passed in exercise of criminal jurisdiction whether by way of appeal or revision or again special leave to appeal, if a civilian is punished for a criminal offence. 73. But the Army Act, 1952. the Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961 do not provide for an appeal. There is thus discrimi­ nation between a civilian convict and convict sentenced under either of these three laws, for which there is not the slightest justification. 74. May be that the Branch of the Judge Advocate General actsj impartially and justly so that a person may not wrongfully suffer for what' he has not done but that by itself cannot be a substitute for appeal which is by right and in which the appellant has the right to be heard before the appeal is decided. 75. I enquired from the three Judge Advocate Generals whether the provision of appeal in these laws is likely to disturb the strict discipline that must be maintained in the Forces, but they could not justify this on any ground. There can be no ground for such an apprehension. In the three laws there are provisions for revision of the finding and sentence and, as stated by the Judge Advocate General of the Army, there are numerous cases in which the order, finding or sentence are set aside after the examina­ tion by the office of the Judge Advocate General and on their recommenda­ tion. If the discipline of the Army does not suffer from the quashment of finding and sentence by the revisioual authority, I do not see why it should suffer if Courts of appeal are established and right of appeal is given. Sue! right has been granted and appeal has been provided after the 2nd World War in the United Kingdom . See The Courts Martial (Appeals) Act, 1951,. 14 and 15 GEO. VI Ch. 46. The recent Act dealing with appeals is Courts- Martial (Appeals) Act, 1968. The later Act repealed Sections 1-29 of the- Act of 1951. But it continues the existence of Courts Martial Appeals Courts •established by the Act of 1951 for the purpose of hearing appeals from Naval-curn-Army and Air force courts as a Supreme Court of Record. Sec­ tion 2 provides for appointment of Civiit&n Judges of the Appeal Court.The- Act of 1968, therefore gives a right of appeal against the convictions of Courts Martial of either of the three Forces and confers the appellate power on Civilian Judges, In the United Stales also Courts of Military Review and Courts of Military Appeals have been set up. The following extracts from American Jurisprudence Vol. 54, Section 263 entitled'Military and Civil Defence" f(at page 96) is reproduced in support of this proposition." "263. Court of Military Appeals. When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power tp a specialized Court of Military Appeals, so that disinterested civilian judges could gam a fully developed understanding of the distinctiveproblems aad legal traditions of the Armed Forces. Thus -with thr enactment of the Uniform Code of Military Justice in 1950, Congress established a Court of Military Appeals, which it located, for administ­ rative purposes in the Department of Defence. The Court consists of three judges appointed from civil life by the President, by and with the advice and consent of the Senate, for a term of 15 years. Not more than two of the judges may be appointed from the same political party and each judge must be a member of the bar of a Federal Court or the highest court of a state. Each judge is entitled to the same salary and travel allowances as provided for judges ot the United States Court of Appeals and is eligible for reappoiatmeat. The judges raay be removed by the President for neglect of duty or malfeasance in office, or for mental or physical disability, and for no other cause. The proceedings of the United States Court of Military Appeals are published in the United States Court of Military Appeals Reports. The Court of Military Appeals reviews the record ia all cases in which the sentence affects a general or flag officer or extends to death : ail cases reviewed by a Court of Military review which the Judge Advocate •General orders are sent to the Court of military Appeals for review ; and all cases reviewed by a Court of Military review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review. An Appeal by the accused must be taken within 30 days from the time he is notified of the decision of a Court of military review, and the Court of Military Appeals must act upon a petition for appeal within 30 days of the receipt thereof. The Court of Military Appeals can take action only with respect to matters of law " 76. It'there had been any possibility of the introduction of indiscipline ia the Army by the setting up of appellate Cowls, the laws establishing such appellate courts against Court Martials would riot have been enforced in the United Kingdom and the United States of America. la fact these Itwo countries went to ths estsat of anointing civilian judges for hearing {appeals against the orders of Courts Martial. Ia view of this it is necessary "Tjthat these three laws governiug Army, Airforce and Navy should be so {amended as to provide for appeals against the orders of the Court Martials., 77. There are provisions in these laws concerning treatment and dis posal of property of deceased persons, deserters aad Lunatics (Chapter XIII, Army Act, Chapter XV Air Force Act and Chapter XV of the Navy Ordinance). 78. The Commanding Officer shall secure the raoveable property of inter alia a deceased person as well as collect al! his pay and allowances, Where the Bank balance of the deceased does not exceed the amount described in S. 153, Army Act Section 189, Air Force Act and Section 164 of the Navy Ordinance, the Commanding Officer may,, if thinks fit, require the Bank to pay the deposit to him, 79. He shall deliver this property and money to the widow or next of kin of the deceased who is present on the spot on furnishing security for the payment of any dues or debts in the camp or quarter payable by the •deceased. Alternatively he shall cause the movable property to be sold by public auction and shall pay from its proceeds, the pay and allowance and Bank deposits collected by him, the above debts and funeral expenses of the deceased. The surplus shall be paid in the case of a deceased person to his representative, widow or next of kin, if any, or in the event of no claim, such surplus shall after expiry of twelve months from the death, shall be remitted to the prescribed person (person to be nominated by virtue of office by the rules) (Section 153, Army Act, Section 189, Air Force Act and Section 164 of the Navy Ordinance). If the total value of property deliver­able and money payable to the next of kin does not exceed one thousand rupees and if the prescribed person thinks fit, it shall be delivered or paid to any of the representative, widow or next of kin who appears to be entitl­ ed to receive it or to administer the estate of the deceased, without requir­ ing the production of any probate, letters of administration, succession certificate or other such conclusive evidence of title (Section 154, Army Act, Section 190, Air Force Act and Section 165, Navy Ordinance). 80. The provisions about disposal of property are also in accordance with Sharia except in respect of property or money which the Prescribed Officer may deliver or pay to the relative, widow or next of kin of the decea­ sed without probate letters of administration, succession certificate or other such conclusive evidence of title. The funeral expenses and debts are the first charge on the property of the deceased. Any provision for discharge of such liability is eminently just and in accordance with Shariah. Similarly there is no harm in delivering property or paying money of the deceased to a person to whon? inser-alia the succession certificate is issued by a Court since the Court usually takes from him a bond undertaking to distribute the proeprty of the deceased among his legal heirs. The provi­ sion about the property or money which the prescribed person is authorized to pay without requiring inter-alia the succession certificate probate etc. , suffers from the deficiency that it does not protect the rights and interest of the other legal heirs. It should, therefore, be provided in Section 154 of Army Act, Section 190 Air Force Act and Section 165 Navy Act that the Prescribed Officer shall pay the money after obtaining a bond from the payee containing an undertaking by him to pay the share thereof to each legal heir. 81. This Court has already directed some amendments to be made in the sections of the Chapter relating to hurts in the Pakistan Penal Code. Mohammad Siaz, etc. v. Federal Government, etc, PLD 1980 FSC 1. On the principle on which Hadd punishments must be introduced in the laws relating to the forces, it is necessary to introduce the laws of Qisas and Diyot as directed on the above judgment, to these three laws. This would however be subject to the result of appeal against the said judgment which is pending before Shariat Appdiate Bench of the Supreme Court. 82.' There is a chapter 10 each law for pardons, • remissions and sus­ pension of sentence. It will be clarified that these provisions will not apply to cases in which Hadd sentence is awarded. They shall not also apply to the sentence of Qisas &. Diyat if as a result of the Supreme Court judgment in matters of Diyat and Qisas that law is enforced, Pakistan Armed Forces Nursing Services Act, 1952. (Act No. XXXVI of 1952) 83. By S. 9 of the Act the provisions of the Pakistan Army Act 1952, IPakistan Air Force Act 1953 and Pakistan Navy Ordinance 1961 have been applied to such extentfand subject to such adaptations and modification as tnay be prescribed to the officers of the Armed Forces Nursing Service who may be serving with the respective force to which any of the above Law is applicable. Since no part of this Act as such is repugnant to the Quran and Sunnah and the repugnance in the above mentioned three laws with the Quran and Sunnah has already been pointed out and directed to be corrected, no order change or amendment in the Pakistan Armed Forces Nursing Act is required. ORDER 84, We direct that the following amendments be made in each of these three laws :- (i) Hudood Laws be made applicable to the members belonging to these three Forces though the legislature may vest Army Officers with the powers of Sessions Judge or Magistrate or provision may be made for trial of these offences, whether Hudood or Ta'zir by the Summary Military Court. Special Miiitary Court or Court Martia! as may be considered advisable, keeping in view the nature of the sentence of any particular offence. (ii) Appellate Court be set up to hear appeals against the convictions under the Hudood laws as well as against their convictions under these three laws though petty punishments may be made subject of revision only. (iii) Section 154 Army Act, Section 190 Air Force Act and Section 165 Navy Ordinance be so amended as to make it incumbent 10 take a bond from the next of kin undertaking to distribute the money taken by him from the assets of the deceased among all the Mus­ lim heirs. (iv) In the Chapter relating to pardons, remission and suspension of sentence in each law it shall be clarified that the provisions of that Chapter shall not apply to cases in which Hadd sentence is awar­ ded. They shall not also apply to the sentence of Qisas and Diyat if as a result of the Supreme Court judgment in matters of Diyat and Qisas, that law isenforced. (v) If as a result of the appeal pending before the Shariat Appellate Bench of the Supreme Court against she judgment of ibis Court in Muhammad Riaz v. The Fed-era! Government etc., PLD. 1980 FSC 1, the law of Qisas and Diyat is made a part of the law of the land these three Saws shall be so amended so as to give effect ta law. 85. The amendments directed in paras (i), (ii), (iii), and (iv) shall be made by the 29th February, 1984 while the amendment directed in para (v> shall be made within four months of the judgment of the Shariat Appellate Bench of the Supreme Court. (TQM) Order accordingly.

P L J 1984 FSC 121 [Appellate Jartsdic P L J 1984 FSC 121 [Appellate Jartsdic!i®B| Present : B.G.N. KAZI & MAULANA ABDUL QUDDUS QASMI, JJ SULEMAN— AppeHaat Versus THE STATE --Respondent Criminal Appeal No. 134/1 of 1983, decided ob 26-3-1984 <i) Offence of Zina (Enforcement of Hadoori) Ordinance (VII of 1979)— — — S. 10. — Zina-bil-Jahr—Qffence of- Victim— Evidence of — Corroboration — Appellant committing on several times offence of Zina-bil- Jabr with victim (a) recently married woman— Evidence of victim also supported by medical evidence and report of Chemical Examiner-- Held ; Medical evidence and evidence of Chemical Examiner though not conclusive against appellant, such evidence to certainly corrobo­ rate version of victim, [P, 126] D (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979) — -- S. 10— Zina — Offence of— Conviction for— Held , Quality and cre­ dibility of evidence being important and Zina offences rarely taking place in view of others or even ai public place, generally hardly any witnesses other than victim herself (to be available). [P. 125J B (iii) Offence of Zina (Enforcement of Hadood) Or dieasce (VII of 1979)— _ — §. 15 — Abducting woman to subject her to forcible rape— Offence of— Appellant inducing victim to go with him from house of her father through deceitful means— Held : Victim having bees abducted with intention to subject her to forcible rape, accused to be liable te be punished with severs sentence. [P. 13 Ij H (iv) Offence, sgaiast Property (Enforcement of Haisejl) Ordinance-- (VI of 1979)— — — Ss, 15 & 20 — Haraabah— Offence of— Wrongful restraint caused before taking away property of another — -Held : Offence committed to be Haraabah punishable under S. 20 of Ordinance. '{P. 1281 G (v) Crfminai Trial— — — Investigating agency — Omission to collect ava:!ab!§ evidence — ffect of — Held: Omission to collect a!S available evidence (in Zina and abduction ease) on part of investigating agency sot to b« considered as fault ob par! of witness (victim in case). JPp. ! 27 & 128] F -<»i) First Information leport— — <-Delay in lodging of— Zina ascl abduction essc— -Effect on — H«Sd : Delay in reporting occurrence in abduction ®f married woiBa& aad commission of Zina-bi l-Jabr to policegeneraliyaof to be considered to» be harmful to prosecution — Held farther: Honour of married -woman. iind that of her family and family of her husband 'being involved delay of some days in reporting occurrence to police not to be uncc'.mjnoa. (Pp. 124 & 127] A & E ls,o PW Sanjeyniiifa and who without snjy furtitfr.-loss of time Tcpd^M tfre,matter 'to the ppliqe. With regard to the chai'gfr «f rina-bil-jabr again si 1 the appctt&crt Mst. Inayat Begum' who is the vietim, has fully supported the pjosecuuon ease and has stated that the appellant commit­ ted iina-biSjmi» with her oh the pornt of ptotoh Accordiog ^o her it was ia a room of a hotel at Peshawar that the appellant committed Zina against her wishes and he continued to commit Zina-bH-jabr with her when he had confined her ia the hau§«i of his elder brother Sher Muhammad in village K.atlang. She has also explained that all the time she was mder restraint as even when the appellant left the house some­ times, his brother kept watch over her. ThU part of her evidence is also of importance in coming to the conclusion about th: offence commit­ ted ia respect of gold ornaments which were taken from her by the absconding accused Sher Mahatnmad and the appellant. It was due tothe number of witnesses able to give testimony about zina that the offence was considered not to be one punishable with Hadd but with tazir. We are of the view that on the reason for alleging enmity stated by the appellant. Mxt, Inayat Begins, a young married woman, recently married before the incident would not have involved her honour and repu­ tation in framing a false, cue .^against the appellant and the same could be said of her father, C3mplainantShad Muhammad. There is, therefore, ao reason for disbelieving ths evidence of Msi. Snayat Begum with regard to the offence of zina-bil-jabr committed on several occasions by the appella.nt. The aforesaid evidence of Afst, Inayat Begum is aiso suppprted by the medical evidence and also the report of the Ctiemical Examiner. The aforesaid evidence by itself is no doubt not sufficient to connect the appellant with the crime as Mst Inayat Begum is married woman and therefore, the medical evidence and evidence of the Chemical Examiner about the ssmea bsing found in her vagina would not be conclusive against the appellant. However, it certainly corroborates the version of Msi. Snayat Begum who was examined by Dr. Razia on 6-11-1981 and who had remained away from her husband since 28-10-1981. The learned counsel for the appellant has also alluded to the fact that according to AS! Muhammad Sharif, the investigating officer, she had been recovered oa 5-U-1981 and he had sent her to the police station through a female constable of police and only produced her with examination on 6-11-1981. According to the learned counsel for the appellant the possibility of sexual intercourse by ASl Muhammad Sharif could not be over-looked. It may here be observed that no such question was put to Muhammad Sharif who appeared as a witness and ths very fact that a female cons­ table of police was sent with her for taking her to ths police station belies the assertion. In any case the medical evidence fully supports and cor­ roborates her version about appellant committing Zina-bil-jabr with her, It may, however, be observed here that there is evidence of ASl Muhammad Sharif that Mst. Inayat Begum was recovered and absccjriding accused Sher Muhammad elder brother of th^ appellant was arrested at Shahdara bus stop. If the matter of the alleged empty is taken inte aeceunt, it would have been easier to falsely implicate the absconding accused Sher Muhammad with committing Zina-bil-jabr rather than the appellant who is his younger brother but Msi. Inayat Begum gave only version of the incident and made allegation; against the aforesaid Sher Muhammad to the extent that he helped his brother in confining and her i8si.de his house at .their village Katlang. 10. Tiie le&roed-sc-uns^l for the appellant has also attempted to show that the evidence of Mil. Inayat Begum and her father Shad Muhammad contains co'iatfdictions and, therefore, it is not worthy of credit. ,-= ^m -j iance that ,the delay in such cases in reporting occurrence of 1 this sohj to the police is not generally considered to be harmful to the prosecuti-.ini and, therefore, there was no necessity of his mis-stating the date of iusj return. 11. Stress has also been laid on the fact ihat although in the FIR the complainant mentioned that he was told that the girl was wearing ornaments of gold, he had in his deposition further added that she had also taken along some of her clothes. It would appear to be the defence plea that taking of clothes indicates deliberate elopment rather than abduction. However, since it is also the case of prosecution that girl was taken out of the house on the false pretext that her parents had been involved in an accident, the mere fact of her taking some of her clothe should be indicative of her thinking that iooking-after them in the hospital otherwise might take time, and it is also to be remembered that she was a newly married bride. The fact if at all true about her taking some of her clothes is, therefore, not sufficient to raise presumption that she was a consenting party and had eloped with the appellant. Moreover the very fact that it was initially mentioned in the FIR that the girl was wearing ornaments of gold, the alleged improvement in the deposition ol the camplaraant would not be of any help to the prosecution and is not. therefore, of any consequence. 12, With regard to evidence of Mst. Inayat Begum, the learned counsel for the appellant argued that if the incident of abduction took place on 30-1-1981 at 11.00 a.m as stated by her, the statement that they reached Peshawar before the '/fzan' for evening prayer, could not be considered ' to ' be a truthful statement. However, we understand that there is direct bus service between Lahore and Peshawar and it is possible to reach Peshawar within the time stated by Mst. Inayat Begum. Her further statement that they left hotel at Peshawar at about 8.00 a.m. for going to Katlang would also appear to be un-exceptionabie. The further admission .that she did not raise cries in the bus is explained by her by stating that the appellant who was armed with pistol sat with her in such a manner that she could feel the pisto! all the time. It is true that the investigating authority did not secure the pistol from the posses­ sion of the appellant in this case but the further fact that he had been absconding and was incidently arrested by CIA police fnr an offence under the Arms Ordinance at Lahore would indicate that at least there is no reasoa for disbelieving the victim with regard to the appellant having a i pistol white committing zina-bin-jabr and while taking her from place to place. A3. .It is further argued ou behalf of the appellant that" it. is: usual for tBejrVietim to indicate the places where she was detained by the appellant but in the infant case the hotel and place of her detention in the village were not shown to the police by the victim. Omission of) .collecting all the available evidence on the part of investigating agsncy/ F Icannot, however, be considered as a faalt,on the part of the witness since fshe was not concerned with the investigation and had made her statement ias indicated 14 With iegard to contention No. 3. Mst. Inayat Begum in her de­ position had given evidence about gold ornaments which she was wearing, which reads as under :—• "On the next day he took me to his village Katlang. He kept me there for two three days in the house of his brother Sher Muhammad co-accused There also he committed zina-bil-jabr with me. When­ ever Suleman-accused went out of the house his brother Sher Muhammad kept a watch over me. They persuaded me to marry Suleman accused but I told them that I had already been married. Then bath these accused took my golden ornaments weighing about 10 tolas. When I did not agree to marry Suleman accused then both of them took me to Lahore but on the way Suleman-accused got down at Rawalpindi and stayed there." 15, It is, therefore, very clear that according to Mst. Inayat Begum she was under restraint and detention when the two brothers namely the appellant and absconding accused Sher Muhammad took from her, her golden ornaments after she had refused to be persuaded to marry the appellant. It is, therefore, apparent that the taking of the ornaments was not from the dwelling house of Shad Muhammad as at the time she left house was wearing the same. Nevertheless there appears evidence to the effect that the appellant had committed an offence, it may be stated here that the appellant has also been convicted under section 342 PPC for keeping Mst. Inayat Begum in illegal confinement and had been sentenced to undergo 6 months' R. I. on that charge. This conviction is also based on the evidence on record specially of Mst, Inayat Beguin which shows that at the time she was deprived of her golden ornaments, she was wrongfully confined and restrained in the house of absconding accused Sher Muhammad and that golden ornaments are more than 'nisab' as defined in section 6 of the Offences Against Propertyj( Enforcement of Hudood) Ordinance, 1979. The learned counsel for the appellant has argued that in the deposition of Mst. Inayat Begum the words used are that they 'took away" her golden ornaments, therefore, there is no allegation of any force used. However, Section 15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 defines haraabah as under:— "15. When any one or more persons, whether equipped with arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint .or put him ,,in fear of death or hurt, such person or persons are said to commit hsraabaah." - So that after wrongful restraint is caused before taking away property of another, the offence committed is haraabah, which is punishable under section 20 of -th« aforesaid Ordinance .which prescribes punishment of raakoh ' IJao'e -tn tvsir'- Since the haraabah is not punishable as provjded la%;Moffl -17 and no such proof as ismentioned in section To/'the aforesaid' Ordinance is-available, Section 20 provides that in,s'uifll tease the persons shall be awarded the punishment provided in Pakistan Penal Code for tits offence of dacoity, robbery or extortion, as the case may be. ' Mardan. The aforesaid memo, mentions that he pointed out that he had sold melted gold of ornaments (dulli) to Mukhtar, Goldsmith of Kahkeshaa Jewellers, owner of the shop. The learned trial Judge in his judgment has-referred i. > the controversy about gold bar secured, that since the memo prepared by the investigating officer and statement recorded by him make it clear that 'dulli' of gold weighing 9 tolas had been produced by PW Mukhtar as the gold sold to him by the appellant, the improvement in the deposition by the Goldsmith was obviously an after thought. In any case •<PW-4) Amanullah has supported the prosecution that the appellant had taken the police to the shop in Mardan known as Kahkeshan Jewellers from where bar of gold weighing 9 tolas had been produced by Mukhtar PW as gold sold to him By the appellant. The identification of the appellant by Mukhtar as a person who sold the golden <.'.;:'; to him was never challenged before the trial Court and there is nothing in the evidence on record to suggest why Goldsmith and ma&Mr Amanullah were deposing against the appellant. The learned counsel for the appellant, however, considers the recovery as not legal and proper since one of the mashirs was a police official and the other mashir namely Amanullah was not a person belonging to the locality. The learned trial Judge has {pointed out that in bis cross-examination when confronted with his statement under section 161 Cr. P.C, witness Mukhtar did state that the appellant had sold to him gold bar weighing about 9 t^las. This admission coupled with the evidence of investigating officer ASI Muhammad Sharif •who recorded the statement of PW Mukhtar makes it clear that the appellant had sold the bar of gold weighing 9 tolas to him which he had produced before the police and wnich had been recovered. In the instant case the important factual position is about the appellant selling the gold bar of 9 tolas to the Goldsmith and the evidence of P.Ws Amanullah and Mukhtar fully corroborates the facts that the appellant <had sold the same. This fact also corroborates the version of Mst. Inayat Begum that ornaments were taken by the appellant and his brother while she was under wrongful confinement at their village Katlang. 21. The contention with regard to fixed sentence of imprisonment for life under section 11 of the Ordinance being too severe to be imposed as tazir, it is apparent has been raised because the learned trial Judge when convicting the appellant under section 11 aforesaid had sentenced him to undergo R. I. for 10 years, to suffer whipping numbering 10 stripes and t» pay a fine of Rs. lO.OQO/- or in default of such payment to suffer further R. I. for two years. The learned Judge had done so over-looking the fact that the aforesaid section prescribes fixed punishment of imprisonment for life and whipping not exceeding 30 stripes and also liability to pay fine. The trial Judge, therefore, had no discretion to award a lesser punishment. It was under the circumstances stated that a notice for enhancement of sentence was served upon the appellant. 22. It is also Tapparent that the finding that the appellant had com mitted the offence punishable under section 11 of the Ordinance is based on facts which appear in evidence on the record which clearly show that the appellant abducted Mst. Inayat Begum. The expression 'abduct' has not been defined in the Ordinance but clause (e) of Section 2 of the Ordinanc which defines 'tazir' as meaning any punishment other than Hadd, provides that all other terms and expressions not defined in the Ordinance shall have meaning as in the Pakistan Pena! Code and section 362 of PPC which .defines abduction reads as under :•--- "362. Abduction : Whoever by force compels, or- by any deceitfu? means induces, any person to go from anyplace, is «aid to abduct that person". 23. In the instant case the appellant induced Mst. Inayat Begum to go with him from the house of her father through deceitful means, by stat­ ing that her parents had met with an accident and her mother was calling her. Whereas in the instant case the woman is abducted with intention to subject her to forcible rape, the accused was liable to be punished with severe sentences as provided by section 11 of the Ordinance and the learned Judge, therefore, had no discretion in the matter of reducing the fixed punishment as prescribed under that section. It is observed that the fixed sentence of 'imprisonment for life'under the section is in accordance with the consideration of gravity of the offence involving kidnapping and abduc­ tion of a woman. The same fixed punishment of 'imprisonment for life' has also been prescribed under sections 13 and 14 of the Ordinance for selling and buying a woman for purposes of prostitution etc. This is in dis­ tinguish to the taking away or enticement of a woman with criminal intent which has been treated less severely as there is some element of consent on the part of the woman. 24. The contention that punishment by 'tazir' should not be fixed bu'. should be left to the discretion of the Court or Qazi, is misconceived as it amounts to an objection against the law. 25. Under the circumstances stated the conviction of the appellant under section 11 of the Offence of Zina (Enforcement of Hudood) Ordin­ ance, 1979, is maintained but the sentence of ten years' R.I. is enhanced to imprisonment for life, whipping numbering 20 stripes and to pay a fine of Rs. 10.000/- or in default to suffer further R.I. for 2 years. The conviction under section 10(3) of the Ordinance and sentence of 10 years'R.I. and whipping numbering IS stripes is maintained. The conviction under section 380 P.P.C. is converted to conviction under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with Section 392 P.P.C. and he is sentenced to 5 years' R.I. and to pay a fine of Rs. 3.000/- or in default to suffer further six months' R-l. The conviction under section 342 P.P.C. and sentence is maintained. The order of the trial Court with regard to all the sentences to run concurrently and execution of sentence of whipping and also with regard to case property shall remain effective, 26. With the aforementioned modifications, the appeal is dismissed. <TQM) Appeal dismissed.

P L J J984 FSC 134 P L J J984 FSC 134 (Original Jurisdiction) Present : B. G. N. KAZI, CH. MUHAMMAD SIDDIQ & MAULANA ABDUL QUDDUS KASMI, JJ OBYAR and Another—Petitioners Versos FEDERATION OF PAKISTAN and Another—Respondents Shariat Petition No. 3/1 of 1984, decided on 9.4-1984. <i) Federal Shariat Court —

-Law—Repugnancy to injunctions of Islam—Declaration regarding. —Shariat Bench of High Court—Decision of—Repetition of—Matter under consideration in petition already dealt with by Shariat Bench of High Court—Order with regard to amending law, however, suspended by Supreme Court in appeal—Held : Federal Shariat Court being successor court to Shariat Bench of High Court, no useful purpose to be served by repeating that already stated in deci­ sion of Shariat Bench of High Court—Constitution of Pakistan, 1973 —Arts. 202-D & 203-B. [P. 135] A & B PLD 1980 FSC 1 ref. ill) Coostitotion ef Pakistan , 1973— -—Arts. 203-D & 203-B—See : Federal Shariat Bench. Ch. Ijaz Ahmad, Advocate (absent) for Petitioners. Date of bearing : 9-4-1984. ORDER B. G. N. Kazi, J.—Ch. Ijaz Ahmad, Advocate for the Petitioners, absent. At the hearing on 13-2-1984 he was also absent but he had sub­ mitted a letter informing the Court that since the Petitioners had been executed and their relatives had no interest to contest the petition and it may not be fixed at Quetta. However, in view of the provisions of Rule 15 of the Federal Shariat Court (Procedure) Rules,-1981, even though the counsel for the Petitioners was hot present, the matter was ordered to be fixed for hearing today at Quetta . As already Stated the learned counsel for the Petitioners has once again remained absent. 2. Obyar and Khuda Nazar, Petitioners, tried by the Special Mili­ tary Court No. 2, Khuzdar, on the charges under sections 302-307-148 and 149 P.P.C. read with MLR-9 and were sentenced to death on 6 8-1983. T'ac Petitioners filed the instant Shariat Petition in this Court under Article 203-D of the Constitution of Islamic Republic of Pakistan praying that section 401 of Criminal Procedure Code in so far as it does not provide for •the eompouadisg of the Offence under section 302 P.P.C being against the Injunctions of Islam as laid down in the Holy Quran and Sunnah, maybe •ordered la be amended by the Government. I. Before the petition could be heard as already stated the two petithraert were executed as their mercy petitions were rejected. 4. The objection to the prayer in the instant petition could be that amder Article 203-D of the Constitution this Court has been given the power to examine and decide question whether or not any law or provision -of law is repugnant to the Injunctions of fslam as laid down in the Holy -Quran and the Sun nan of the Holy Prophet. However, 'law has been> defined in Article 203-B inter alia as not covering law relating to procedure of any Court or tribunal. It may, however, be stated here that in the decision of this Court in Mohammad Riaz etc. v. Federal Government etc. {reported in PLD 1980 FSC !), it was 'inter alia held that this Court was a successor to Shariat Bench of the High Court and issues decided by Sbariaf Bench of High Court were binding and this Court was debarred from adjudicating same issues once again. The question as to whether the pro­ visions of Section 401 Cr.P.C are not within the jurisdiction of this Court to examine witb regard to repugnancy to the Injunctions of Islam was exa­ mined and it was held that Sections 401. 402-A and 402-B Cr. P.C with regard to suspension of decision and commutation or remittance of sen­ tence are not pertaining to law of procedure but vest jurisdiction in the Central or Provincial Government to suspend, remit .or commute the sen­ tence passed by a Court of law. It was further observed that findings of the Peshawar High Court in Gui Hassan's case (PLJ 1982 Peshawar S3) that the provisions of sections 40U 402-A and 402-B were subject to the jurisdiction of the Shariat Bench was binding on this Court. 5. The matter under consideration in the instant petition was already, dealt with by the Shariat Bench of the Peshawar High Court in the cases of Gul Hassan (reported in PLJ 1982 Peshawar 53) and the Government was! < directed to make the necessary amendment in the law. On behalf of the! Government, however, appeal was filed before the Supreme Court and the! order with regard to amending the law was suspended till the hearing of the appeal. The aforesaid appeal has not been decided so far and the legal osition remains same as it was. Nothing new hai been urged in the instant petition which could be brought out in the order of this Court, and the petitioners were executed and their relatives have lost interest. 6. Under the circumstances stated above ao useful purpose will bei -served by repeating what has already been stated in the aforesaid decision/ of the Shariat Bench of the Peshawar High Court to which this Court isf successor Court. We, therefor, dismiss the Shariat Petition. .{TQM) Petition dismissed

PLJ 1984 FSC 135 (Appellate Jurisdiction) PLJ 1984 FSC 135 (Appellate Jurisdiction) (Present: AFTAB HUSSAIN, C. J., B. G. N. KAZf, MALIK GHULAM ALI, MAULANA ABDUL QUDDUS QASMI & MUFTI SHUJAAT ALI QADRI, JJ MUSHTAQ AHMED and Another—Appellants versus THE STATE—Respondent Criminal Appeal No. 15/1 of 1984 Cr. Ref. No. I/i of 1984, on 10-4-1984. «: (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

Ss. 20,9 & 5 read with Criminal Procedure Code (V of 1898)—S. 412 — Zina —Offence of—Confession—Conviction on basis of—Retraetion of confession—Effect of—Person convicted and awarded sentence by trial court retracting his confession at time of or before filing of appeal—Held ; Section 412 of Criminal Procedure Code to be no bar to filing of appeal on ground of retraction of confession, fP. 1371 C «<ii) 0fftaee of Zia» (Enforcement of Hsdood) Ordinance (VII of 1979) —8.9(3)— Zina — Offence of —Confession—Retraction of—Effect of— Confessions, clearly retracted by appellants before trial court—Held ; Trial Court having failed to retry appellants according to ,law after ignoring confession, order of conviction passed despite retraction to be invalid in law. [P. 136] A • <iii) Criminal Procedure C»de (V of 1898)—

g_ 412—Confession of guilt—Conviction on-»-Appea!—Compe-- ency of—Appellants not admitting making of confession before trial soar!— Held. ; Appellate court to be competent to determine question-, of confession having or having not been: made by appellants, [P. 136JB' Procedure Code {V of 189S|— 4, Obviously, in view of this provision of such an appeal would be competent at the instance of a person who has been convicted and awarded hadd sentence by the Court and at the time of appeal or before the filing of the appeal he retracts his confession. We therefore, hold that section 412 is not a bar to the fifing of an appeal on the ground of retraction of confession, 5. As a result of the above discussion we have no option but to set aside the order of conviction and sentence of the appellants and remand the case for retrial. (TQM) Case remanded.

PLJ 1984 FSC 137 (Original Jurisdiction) PLJ 1984 FSC 137 (Original Jurisdiction) Present: AFTAB HUSSAIN. C. J.. B.G N. KAZI, CH. MUHAMMAD S1DDIQ, MALIK GHULAM ALI, MAULANA ABDUL QUDUS QASMI & MUFTI SHUJAAT AL! QADRI, JJ Sheikh MUSHTAQ ALI, Advocate—Petitioner Versu s GOVERNMENT OF PAKISTAN and Another—Respondents Shariat Petition No. 3-K of 1984, decided on 25-4-1984. (i) Legal Practitioners & Bar Councils Act (XXXV of 1973)— ——S. 11-A fas inserted by Legal Practitioners & Bar Councils (Amend­ ment) Ordinance (XVI! of 1982)] read with Constitution of Pakistan, 1973—Art. 203-D—Pakistan Bar Council-—Membership of—Qualifi­ cation for—Challenge 10—Amendment in Legal Practitioners & Bar Councils Act providing for (additional) qualifications for member­ ship of Pakistan Bar Council— Petitioner objecting to qualification regarding entry of his name on roll of Advocates of Supreme Court maintained by Pakistan Bar Council—Held : Provision being not contrary to Holy Quran and Sunnah of Prophet, no interference t<> be made with law assailed particularly because person having no knowledge of Supreme Court practice not to be reasonably entrusted with duty to enrol Advocates of Supreme Court. fP. 138J/4 (ii) Constitution of Pakistan, 1973— -—Art. 203-D—See : Legal Practitioner of Bar Councils Act (XXXV of I973)-S. 11-A. Petitioaer Ju person. Date of heariug : 25-4-1984, JUDGMENT Afteb Httssaio 9 C. J.—The argument in support of petition is basec. upon, Q 4 : 58 lUl Jl -ii.Vlj i>» JV ^'^ U «tl ji (that Allah doth com raaad you to reader ba«:k your Trusts'to those who are qualified for it. This vfrsc is cited because aa office has Ken held ir» he ia the nature of trust Consequently (t^l»! Jl) in that context will mean those who qualify for it. 2. The petitioner's case is that there are 30.000 members on the roll of t!h$ Bar Co mcil but ths newly added Section 11-A of the Legal Practi- 'uonci?-and Bar Councils (Amendment) Ordinance, 1982 provides for a harsh qualification for membership of Pakistan Bar Council. It is inter alia 10 years' oractice and the candidate's name being on the roll of Supreme Court of Pakistan maintained by the Pakistan Bar Council. 3. There is no objection to the 10 years practice. The whole objection is regarding the entry of his name on the roll of Advocates of the Supreme Court maintained by the Pakistan Bar Council. 4. We put a question to the petitioner whether it was his case that no qualification shouid be fixed for the fflembership of Pakistan Bar Council. He stated that this was not his case, and the qualification of 10 years' practice was correctly laid down. 5. The argument based on the above mentioned verse of the Holy Quran, is not correct, since it also provides for qualification of the person to whom the trust is entrusted. There is nothing in the Holy Quran and the Sunnah which may directly support the petitioner. In these cir­ umstances it cannot be sasd that this provision is contrary to the Holy Quran and the Sunnah of the Holy Prophet, particularly when there is good reason for the additional qualification The reason appears to be that person who is a member of Pakistan Bar Council may be required by the Enrolment Committee of the Supreme Court for enrolling Advocates of the Supreme Court. A person who has no knowledge of Supreme Court practice cannot be reasonably entrusted with duty to enrol Advocates of :he Supreme Court. There is no ground to interfere with the law assailed jefore us. The petition is dismissed, (TQM) Petition dismissed. FLJ

FLJ 1984 FSC 138 [Original Jurisdiction) FLJ 1984 FSC 138 [Original Jurisdiction) Present : AFTAB HUSSMN, C. J., B. G. N. KAZI, Ch. MUHAMMAD SIDDIQ, MALIK GHULAM ALI, MAULANA ABDUL QUDUS QASM1 & MUFTI SHUJAAT ALI QADR1, JJ ISLAM HUSSAIN—Petitioner versus NATIONAL BANK OF PAKISTAN —Respondent Sbartat Petition No. 9-K of 1983, decided on 25-4-1984. Constitat on of Pakistan , 1973— -—Art. 203-D—Laws—Repugnancy of to injunctions of Islam— Declaration regarding—Corporation — Employees of—Tenure of service — Protection of — Question of entitlement of employees of Corporation to any protection in regard to their tenure and service already resolved and answered in negative by Federal Shariat Court — Held : National Bank of Pakistan also being Corporation, petition regarding protection of its employees to tenure of service to be liable to dismissal. [P. 139 \A Petitioner in person. Mr. Massif A. Sheikh. Deputy Attorney General for Respondent. Date of hearing : 25-4-1984. JUDGMENT Aftab Hussain. C.J.— The question is whether the employees of the National Bank of Pakistan , which is Corporation, are entitled to aay pro­tection in regard to the tenure of service under Sharia. This question has already been resolved and answered m the negative, in regards to em­ ployees of the Corporations as distinguished Ironi the Government em­ ployees in the judgment of this Court on SSM No. 204/P/83, SS.Vi No. 84/S/84, SSM No. 71/B/84, SSM No, 71/NWFP/84 dated the 27th March, 1984. This petition is liable to dismissal and is dismissed as such. However, we would place on record our sense of gratefulness tor Mr. Islam Hussain the petitioner, for moving this Court, and seeking redress of a matter, which is of pubi-.c importance and was likely to affect a large number of employees of Corporation and Local Governments. (TQM) Petition dismissed.

PLJ 1984 FSC 139 PLJ 1984 FSC 139 (Original Jurisdiction) Present : AFTAB HUSSAtN, C, 3 , ALl HUSSAIN QAZTLB^SH, CH. MUH\MM\OSIDDIQ, M \LIK GH'JLAvI ALl, MAULANA ABDUL QUDUS QASMI & MUFTI SHUJJAF ALl QADR1, JJ SULTAN KHAN--Petitioner versus GOVERNMENT OF N.-W.F.P.—Respondent Shariat Petition No. 2/1 of 1983, decided on 21-3-1984. (i) NWFP Tenancy (Fixation of Compensation to Landlords) Ruleg, 1981—

Rr. 3 to 5, read with Constitution of Pakistan, 1973—Art. 203-D— Occupancy tenant—Payment of compensation by — Formula for assessment of—Challenge to—Petitioner challenging rules framed for fixation of compensation by occupancy tenants to landlords on ground of same being repugnant to Quran and Sunnah as property of landlord not to be taken away from him and to be given to tenant —Held : Occupancy tenancy rights being partly ownership rights in land, beneficial legislation tending to resolve disputes arising out ' of duality of ownership in same land not to be questioned. [P. 141 ]A (ii) Islamic Law & Jurisprudence

Sakoot- Effect of-Iicld : Sakoot (silence) to be cqimaleut to consent in cases where it be one's duty to speak or express his willingness. [P. ]B&C Mejelta (Ss. 67, 438, 773 & 971) ; Mueeaul Hukkaw (160.61) Al.Ashabah Nazir (p. 154) «/. (Hi) Islamic Law & Jurisprudence – __ Sflfowf-Principlc of-Speciftc remedy provided in law not availed by petitioner-Held : Such inaction to amount to consent. SP-142 \D Islamic Law & Jurisprudence ~ —Sofcoof— Principle of - Held : Sharia principle of to be analogous to (present) principle of acquiescence, [P. 142 (V) Constitutiooof Pakistan. 1973 — Art 203-D— See N,-W.F.P. Tenancy (Fixation of Compensation to Undlords) Rules, 1981-Rr. 3 to 5, 9 & 10. Mr. Ghulam Mustafa Awan, Advocate for Petitioner. Mr. Amirzada Khan ; A.A.G. for N.-W.F.P. Sheikh Riaz Ahmad, Advocate-General for Government of Punjab . Date of hearing : 10-12-1983. JUDGMENT Aftab Hussain, C.J. -Section 4 of the N.W.F.P. Tenancy Act, XXV of 195C I nrovides that any occupancy tenant who at the commencement ot this Act occupies any land as such oa payment ot the entire rent in cash or oaltMn cash and partly in kind shall become owner thereof on payment XShVcomiSStion to the landlords at such rate and within such period ? mav iS Sescribed the Board of Revenue under this Sectton. _ It also LrL? if the tenant fads to pay the compensation determined in SdanS i th Sb ^provision t Q£ ^ O f occupancy shall be determmed aCW ,^t of compensation by the landlord as determined and prcs SS land shall vest in the landlord and he shall be entitled to possession [hereof Tree from any encumbrance or lease created by the tenant m respect of that land. Rules were framed which fixed the period of payment of comt; n "« 18 months It was later extended from time to time by Sve orders up ti -file 30th of September, 1956. Subsequently another vf a r was eTven by the N.W.F.P, Tenancy (Validation and Extension ot pSfodfo? Pavmen of Compensation) Ordinance, 1969. On he 7th ot jSl 1982 SSScation NoV 28771 Rev. IV/I68-A was issued by the fiovernraent wh icb contains the North West Frontier Province Tenancy SS of Compensation to the Landlords) Rules 1981. The rule, SntSn the formula for assessment of compensation. Rule 5 provides that the com^atirn shall be payable either in lump sum or by mstalments and the total amount shall be payable within 18 mooths, .v The petitioner Sultan Khan, who L, atfjcted by luesc rules us. an owner of land under occupancy tenancy has challenged them as being repugnant to the Holy Quran and the Sunnah of the Holy Prophet on the ground that neither tnc Quran, nor the Sunnah allows the property of the landlord to he taken away from him unci tn be given t-> the tenant, 4, The learned counsel pinced reliance on verses Q 2 : 188, Q 4 : 2' aud some Ahadecs. 5, The question ol the scope of joecupancy tenancy aad its jurisdic­ tion in Sharia as well as the question of validity of Section 4 has been considered by this Court white examining the N -W.F,P. Tenancy Act, 1950. It may, however, be added that the learned counsel had, on instruction taken in Court from the petitioner, conceded that the occup­ ancy tenancy right on the tenants ware conferred by th; petitioners' pre­ decessors as a result of contract. The creation of such right canuot be invalid. 6, The judgment was not recorded at tiic tmi~ of examination Ot the Tenancy laws since the Court was cognizant of the fact that it had to hear arguments oq this petition. While writing the judgment on the Tenancy Act, arguments of the learned counsel were kept in view. 7. The main point to be determined is whether the government can extinguish occupancy tenancy rights subject to payment of compensation and confer ownersSiip right on the tenant, ft has been hsld in the above judgment that Occupancy Tenancy rights are partly ownership rights in thel land and this is a beneficial legislation which tends to resolve all disputesM arising out of the duality of o-viurship in t;ie s.iaii Sand. This disposes off the petition which is therefore liable to be dismissed. 8. It may, however, be added that the learned counsel relied oil the uranic Injunctions that one should not squander the property of another in a wrong way and except in trade by mutual consent. Tnis would mean lhat nobody's property can be squandered except with his consent. 9. Firstly, the property is not being taken by the tenant except under the protection of a statute made for public benefit. Secondly, the consent of the petitioner to that statute is proved by his long silence for over a period of 32 years since the legislation was passed although he challenged it in the High Court and the Supreme Court oa grouuds ol", violation of fundamental right of property. It is established propositions of law that the sukoot or silence is equivalent to consent. | SO. The maxim about the consequence of c intent is as follows : — 1 1 . Silence is considered equivalent to consent iu cases where ouc's duty to speak or express his willingness. In this connection, Prophet (PBU'H) observed about the adult girl to whom was made otfer of marriage with a man named before her, that her silence is her consent, (Hedaya Volume 1, page 294). 12. Section 67 of Mejdla is also explanatory of this ptincipie and 1,1 reproduced as under : — "To a man who keeps silence no word is imputed, but where there is necessity shown, silence is a declaration, That is to say, it is not said of someone who keeps silence that he has said such a thing, but where there is reason why he shall speak, his keeping silence is regarded as an admission and a • declaration" (Mejella Section 6?)". 13. Some instances of this rule are given in Sections 433 and 971 of Mejella. 14. Allama Tarablasi writes "Silenu; is considered consent in many cases like the sileace of an adult girl in the contract of her marriage, silence in contracts of hiring gift, agency, sale pre-emption, right, silence about the defect iu the sold thing before the contract of sale etc". Mneeanl Hakkam page 160, 161 : Al Ashbah Wal-Nazir by Ibn-e-Nujaim, page 154). 15. On this analogy the inaction of a man in a matter where specific D remedy is provided in law shall amount to his consent since if he had any grievance he would have gone for its redress to the Court : Sharia principle £ of sukoot (silence) is thus analogous to the present principle of acquie- Jscence. 16. Such a remedy was open to the petitioner under the Constitution of 1956 upto the 8th of Ocober, 1958 when Martial Law was imposed. It was again renewed in 1964 after the fundamental rights, including such rights to property were added in 1964 to the Constitution of 1962. The remedy could be sought under the Constitution of 1973 till 5tb of July, 1977. Thi silence of the petitioner brings his case within the scope of in Q 4 : 29. This petition is dismissed . (TQM) Petition dismissed.

PLJ 1984 FSC 142 PLJ 1984 FSC 142 (Appellate Jurisdiction) Present : B. G. N. KAZI & Ch. MUHAMMAD SIDDIQ, JJ OBAIDUR REHMAN -Appellant versus THE STATE— Respondent Criminal Appial tfj. 20/1 of 1984, heard on 8-5-1984. (i) Offence of Zinn (Enforcement of Hodoad) Ordinance (VII of 1979) -- -S. 10 (3)— Zina— Offence of—Conviction for— Zina committed on niece by appellant 3/4 times in his office— Victim, young girl of 13 years, giving evidence in detail against her own maternal uncle— Such evidence corroborated by medical evidence and report oi" Chemical Examiner—Even no enmity of victim, her father or any of prosecu­ tion witnesses corroborating testimony of girl proved on record—Ap­ pellant also making no complaint to law enforcing agencies against blackening of his face, ride on donkey back, insults, abuses and multiple injuries and abrasions received—Held : No doubt having been created about guilt of appellant, conviction an.-t sentences to be maintained with modification that imprisons!"; ::r<t to be for terra of twenty five years. [Pp. 145 & 146] A, B & D (ii) Offence of Zina (Enforcement of Iludood) Onlitesmoe (VII of 1979)—

S 10(3)— Zina Offence of—Punishment for—Trial Court while convicting appellant under S. 10 (3) awarding him imprisonment for life Held : Punishment of imprisonment for life though technically not envisaged under S. 10 (3), irregularity to be cured i nder S. 537, Criminal Procedure Code (V of 1898). [P. 146if Mr. M, A. Chughtai,' Advocate for Appellant. Mr. Muhammad Asiam ubs, Advocate for State. Date of hearing : 8-5-1984. JUDGMENT B. G N. Kazi, J,—The appellant who was ihcd by the Sessions Judge, Rahimyar Khan and convicted under section !() (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hcre-m-after referred to as the Ordinance), and sentenced to suffer life imprionment and whipping numbering thirty stripes, has filed the instant appeal against his conviction and sentences. 2. We have heard the argument of the learned counsel for the par tie. and perused the record of the trial. The case against the appellant was that he is a business man and is resident of Basti Amanat Ali in the City of Rahimyar Khan. He is husband of Mst. Naima Batooi, Lady Councillor of Municipal Committee, Rahtmyarkhan. On 4-8-182 a procession was taken out in the City in which the appellant with his face blackened and arms bound was seated on donkey as punishment on the part of > unchayat of the relations and other local citizens for inter alia committing zina with the daughter of his consanguine sister and of Muhammad Yunis'another business man, and a relative of the appellant. 3. The matter was brought to the notice of the authorities by Muhammad Nawaz son of Mian Ghulam Muhammad Ve-iha, a member of the District Crime Control Committee Rabsmyarkhan, who addressed ap­ plication (Ex. PC) dated 5-8-1982 to Superintendent of Police Rahimv yarkhan about the procession which took place on 4-8-1982. A copy of the application was taken by hand also to the Deputy Commissioner Rahirnyarkhan. Muhammad Nawaz aforesaid who is also the Ameer ol defunct Ja®a«t-e-Isiair was ulwn before Dr. (Mrs.t Khawar Rana. S.I.P. Muhammad Siddiqae also had Ubaidur Rehman medically examined for potency. He also took Lito posiesM.jn photostat copy of birth certificate ( Et PE ) about V/sf. \situ Bib; aad photostat (Ex, PK) of the writing said to have been, over signature of Ubaidur Rehman accused vide Memo, Fix. PH. After recording tbc statements of ilv prosecution witnesses submitted the papers to the S.H.O. who challan^d the appellant. na s,»g;U'd ik taking oat provision was taken cogni­ a case under section 1&8 P. P, C. was registered Muhammad Siddique at FIR No. 2 77 dated 6-8-1982 Rabiruyarkhaa against Muhammad Yunis (father of nid Shaiique, Muhammad Jamil Shaida and Rizwanul also under section 16 of the Maintenance of Public 960 and sections 357/500/348 P.P.C. The case under trial was registered on 7-8-1982 on the written osder of Deputy Superinten­ dent of Police (Saddar) Rahimyarkhan. 6, There is ocular evidence of the victim namely Mst. Asifa Bibi aged about 13 years and a student of 8th class, against the appellant. She has definitely implicated the appellant, who is her maternal uncle, Accord­ ing to her 2/3 months before the taking out of the appellant in procession, she had gone to his factory. He was alone and had taken to his office. After closing the door from inside he had committed :ina with her forcibly. As she felt puin, she wanted to raise alarm but the appellant threatened her with a knife. She admitted that due to fear she did not inform anybody about the occurtence and since there was bleeding from her private parts she wits treated for piles. Again 2/3 days before the appellant was made to sit on a. donkey and the procession was taken out he had taken to her to his factory and committed =ina with her. She further explained that when the secret became open she informed her parents about the occurrence. The young girl in the cross-examination stated that the appellant had committed :ina with her 3,4 times. The learned counsel for the appellant has argued that there is only the ocular evidence of Mm Asifa which should not be believed against the appellant. It may. how­ ever, at this stage be observed that the appellant-accused is maternal uncle of the victim and there is nothing on the record to show any enmity of the victim, her Father and any of the prosecution witnesses who have cor­ roborated the testimony of the young girl. The defence plea that Afst. Sbabida Qari was angry \vitb him over bis refusal to marry her, could not be considered as sufficient groutiu for b\ f.ilse implication by the aforesaid peersom, inasmuch as Muhammad Youui~. the father of the girl aad other witnesses who arc tcluted xo t'ae parties woul-l not have involved, the honour of the girl and tbc two nuuor sons of Muhammad Yunis with whom tbc appellant is ft rtber alleged to have committed sodomy, at the instance of Shabida Qari or anyone else, Thr evidence of the victim is corroborated by the medical evidence and the certificate of the Chemical Examiner with regard to zina having been committed on Mst. Asifa. Moreover, in the instant case there is evidence of extra judicial confession in the presence of entire punchayat about which evidence has been given by Muhammad Yunis, Hakim Muhammad Abdullah, Muhammad Jamil Shaida, who all state the appellant confessed before them of having com­ mitted zina with Mst. Shagufta, Mst. Asifa and sodomy on the two minor sons of Muhammad Yuais. It is on the record of the case that the cases of the sodomy on the two boys and the zina with Mst. Shagufta are pro­ ceeding in other Courts, 7. Besides the aforesaid evidence there is also a writing (Ex. PD) on which admittedly appears the signature of the appellant, which was also signed by Muhammad Yunis, Muhammad Jamil Shaida, Rizwanul Haq and Muhammad Siddique, father of the appellant. It is true that in the writing there is confession about two children of Muhammad Yunis but the omission of the girls' names is understandable, as an effort to save the two young girls from ignominy and dishonour. It is apparent from the record, specially the statement of witnesses, wh j ere members of the punchayat and took part in the proceedings resulting in the taking out the procession that the compromise not to report to the police had made to save reputation and goodname of the girls involved. The learned counsel for the appellant has referred to the evidence of Dr. Abid Hussain of Rahimyarkhan which shows that the appellant had received extensive multiple contusions which though simple in nature were enough to estab­ lish that the appellant had received beatings. He has also further argued that it was after the beatings that the appellant was forced to make con­ fessional statement. Mr. Muhammad Aslam Uns, the learned counsel for the State, however, pointed out that the procession was taken out after the compromise and after the writing was signed by the appellant and the simple injuries were in all probability caused to the appellant while he was riding on the donkey with his face blackened and hands bound and therefore, the same could not serve as evidence of coercion for signing the writing. 8. As already stated the parties are inter-related and this is a case of zina committed on the niece by her maternal uncle. The only explanation sought to be made by the appellant is too far fetched and besides is not proved by any admission made by the prosecution witnesses in that behalf. The matter was not put to the witnesses concerned in that behalf. The matter was not put to the witnesses concerned in cross-examination and the defence plea, therefore, appears to be an after thought. 9. In cases of this nature there is no ocular evidence and since in this case the victim is young girl and not full grown woman, who has given! evidence against her own maternal uncle in detail, there can be no question!- 4 of disbelieving her evidence, specially when it is fully supported by medical! evidence. It may here be stated that the learned counsel for the appellant! has also contended that the evidence about the vaginal swabs being sent to the Chemical Examiner is not satisfactory in that the entire chain of evi­ dence of persons who took the same to Chemical Examiners is, obviously, not on the record. However, it was for the defence to put question to the investigating officer and other police officials to support their plea, if it as their ease that the aginal swabs were in fact not the same which were sent by the lady doctor to the Chemical Examiner through the police. However, it Is apparent that no such question was pit in the crossexamination. 10. The subsequent conduct of the appellant is also indicative of his consciousness of guilt. He is ao educated businessman who obviously is soci­ ally highly placed, so much so that his wife is Councillor of the Municipal Committee. He however, allowed the blackening of his face, the ride on^tbe donkey back, insults and abuses and received even multiple injuries and abrasions but neither he nor his wife complained to the Saw enforcing authorities of the locality, of the district, the Province, or the Federal Government. It was left to the local head of the Jamait-e-lslatni to report the incident and the fact that the procession was taken out illegally to the disgrace a local citizen, It is also significant to note that his father who had signed his written confession as a witness and as member of the Panchayat and who was cited as a defence witness by'the appellant was given up by him and, therefore, there is the obvious presumption that he would not have supported the defence. 11. Lastly the contention has been raised that the Seamed Sessions Judge, Rahimyarkhan, while convicting the appellant under section 10 (3) of the Ordinance to imprisonment for life was overlooked the fact that under that section the offence is punishable with imprisonment for a term which shall not iess than four years and not more than 25 years. The giving lof punishment of imprisonment for life, though technically not envisaged Clunder the section, the irregularity could be cured under section 537 ICr. P. C. 12. For the reasons given above, there is nothing urged to support the appeal which could be considered as even creating doubt about the guilt of the accused-appellant. The appeal is, therefore, dismissed and the conviction and sentences are maintained with the modification that under sec­ tion 10 (3) the appellant is punished with imprisonment for a term of twenty five years and also to suffer whipping numbering thirty stripes in 'Mehmood Stadium, Rahimyarkhan, in public, (TQM) Appeal dismissed.

PLJ 184 FSC 146 PLJ 184 FSC 146 [Appellate Jurisdiction] Present : B. G. N. KAZI, J ABDUL RASHID—Appellant versus THE STATE—Respondent Jail Criminal Appeal No: 33/1 of 1984, decided on 9-5-1984. Prohibition (Eaforcemeot of Hadd) Order (P. O. 4 of 1979)—

Art. 11 read with Punjab Prohibition (Enforcement of Hadopd) Rules 1979—R. 5—Drinking liable to Ma??'r~Qffence of—Conviction for-»Appellant not at any time seen actuary-drinking alco%t«ic wtesicani by any one—Suspicion against turn admittedly arising because^ his loquacity and exuberant behaviour—Medical Officer esaiBining appellant reporting no symptoms as mentioned in rele­ vant fules — 'fWsnn .of appellant, however, not examined with respect to presence of intoxicant in his breath or blocd stream or stomach •— Appellant being admittedly opium addict permitted by medical officer to purchase and have opium of particular quantity—Held : Appellant to be acquitted of charge by giving him benefit of doubt. [P. 149^ & B Meiictl JurisprasSece Toxicology by Modi (22nd edn., P. 64) r«f. Ssja Abdur Rahim, Advocate for Appellant. Mr. Muhammad Aslam ubs, Advocate for Respondent, Date of itesjriBf : 9-5-1984, JUDGMENT The appellant was tried by the Magistrate First Class, Toba Tek Singh and convicted under Article 1 i of the Prohibition (Enforcement of Hadd) Order, 1979 (here-in-after referred to as the Order) and sentenced to suffer R. I. for six months and whipping numbering fifteen stripes for his having been found in an intoxicated state on 22-94982 at about midsight in. cinema compound situated in Pir Mahal town. He had filed am appeal before the Sessions Judge, Toba Tek Singh against his conviction and sentences, which was dismissed on 21-9-1983. 2, At the very out-set it may be stated that after the dismissal of his appeal he was seat to Jhang Jail for serving out the sentence. The Superintendent of District Jail Jfaang wrote a letter in respect of Jail ap­ peal sought to be filed by the appellant in which it was stated that copy of the judgment of the MIC, Toba Tek Singh, though asked for from the Court, had not been supplied to them yet and in view of fhe short sentence and also the sentence of whipping, the aforesaid Superintendent was required to arrange for submission of attested copy of the judgment of the trial Court. Since, the appeal before the Sessions Court had been dismissed, the revision petition was likely to be fixed before this Court only on the receipt of judgment of the trial Court and orders for sus­ pension of the sentence of whipping pending fixation the revision petition were passed on 29-1-1984 and sent to the Superintendent Jail. In the meantime the appeiiant having served out the sentence of imprisonment was released by the Jail authorities aod a notice was ordered to be issued to the appellant before hearing the instant Jail appeal Raja Abdur Rahim was appointed as counsel for the pauper petitioner in the interest of justice at State expense. 3. A perusal of the record shows that Excise Inspector, Sajjad Hussain Shah of Pir Mahal, Dr. Muhammad Iqbal Zaidi, Medical Officer and A.S.I. Muhammad Hanif were examined by the prosecution before the statement of petitioner was recorded and he was convicted as afore­ said. Excise Inspector Sajjad Hussain Shah stated that on 22-9-1982 when he with S.H.O. Muhammad Akram, and two police constables were passing by the cinema house of Pir Mahal he heard noise from the side of the anteen, inside tbs courtyard of the cinema house, and found tfeat the petitioner was speaking loudly and creating commotion As nis flsrath smelled of liquor, he was sent to Medical Officer «sifi on getting report from the Medical Officer that he had taksu intoxicant drink, a report was registered at the Police Station and after investigation the petitioner was sent up for trial. A.S.I. Muhammad Hanif. who received the report regis­ tered the same and went to the scene of offence. He prepared the sketch of the scene of the oftence. 4. As already stated, the rest of the witnesses including the S.H.O. Muhammad Akram and the Police constables were not examined as prosecution witnesses at the trial of the petitioner and the petitioner himself denied the allegation that he had taken liquor. It was his case that he had gone to buy cigarettes and the Excise Inspector on seeing him called him and accused him of having taken liquor and took him to the police station. He denied that he had been taken before Dr. Muhammad Iqbal Zaidi. He produced before the Court permit of medical officer for per: mitting him to purchase specified quantity of the opium pills as it was his defence that he was an opium addict. 5. Raja Abdur Rahim, the learned counsel for the petitioner, has pointed out that although in his cross-examination Excise Inspector Sajiad Hussain Shah, who was examined as P. W. 1 admitted that the owner of the canteen and the some other persons were also present, no independent witness has been examined in support of the prosecution. It is true that the incident is stated to have been taken- place at about mid-night, but it is furtter contended that in view of the admission of Excise Inspector Sajjad Hussain this plea was taken before the trial Court and also before the Sessions Court, bul the learned Magistrate was of the opinion that since it was not case of search or any sort of raid, it was necessary to examine independent witnesses with regard to the matter. It has, however, been contended by the learned counsel for the petitioner, that even for the purpose to show that the provisions of Article 12 of the Order were complied with, it was for the prosecution to give the best evidence available in respect of the alleged conduct of the petitioner and to establish that on being asked the petitioner had accom­ panied the Excise Inspector to the authorised Medical Officer for his own examination. It may be observed that under the aforesaid Article no police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 11 unless he asked such person to accompany him to an authorised medical officer for examination and such person either refuses to so accompany him or, having been examined by the medical practitioner, is certified to have taken an intoxicant. Obviously, it is not the case of the prosecution that the petitioner was arrested since, according to the Excise Inspector Sajjad Hussain, the very report of the offence was sent to the police station after receiving the so called certificate of the authorised medical officer. Dr. Iqbal Zaidi, Medical Officer, who was examined, made at the time on the very letter of request for examination of the petitioner written by Excise Inspector, Sajjad Hussain, an endorsement that he had been brought by Muhammad Yunis F. C. of Police Station Pir Mahal at about 1Z-30 a.m. and that he found his face flushed, both eyes red, and congestec5 and his pupils contracted and further that in his opinion he had drunk alcohol. Raja Abdur Rehim, the learned counsel for the petitioner, has pointed out that it is admitted position that the petitioner was taken to the house of Dr. Iqbal Zaidi at about 12-30 ai the night and it is apparent from the record that the so called certificate had been given and that no proper examination of the petitioner was made before certifying, that be had taken alcoholic drink. It is pointed out that the endorsement on the letter is so slipshod and the doctor certified that the appellant had "drunk Alcohol" instead of stating that he had taken an alcoholic drink. 6. Section 12 of the Order provided that no police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 11 unlees he has asked such person to accompany him to an authorized medical officer for examination. Assuming that Dr. Muhammad Iqbal Zaidi was such an authorized medical officer as menioned in rule 5 of Punjab Prohibition (Enforcement of Hudood) Rules 1979, that rule provides that such Medical Officer, "may examine the person referred to him under Article P. (2) of the Order with respect to the presence of an intoxicant in his breath or blood stream or stomach. If the authorised medical officer can presume the taking or influence of the intoxicant from any other symptom such as hangover effects, rausea, headache, gastritis thirst, generalised residual malaise, physical or mental incompetence or over-drowsiness, Euphoria, Disphoria or other after effects of taking any intoxicant, he may dispense with the aforesaid examination". It is clear that the symptoms such asi mentioned in the rule had not been reported by Dr. Zaidi and, therefore,! he had to examine the person "with respect to presence of an intoxicant! in his breath or blood stream or stomach" which it is obvious he did not| care to do. 7. As already stated, it was the case of the petitioner that he is opium addict and was permitted by the medical officer to have opium pills which he had taken before coming out to get cigarettes. The afore­ said plea has not been treated very seriously by the trial as well as the appellate Courts. Symptoms, however, at first stage of taking of opium have been stated in Modi's Medical Jurisprudence and Toxicology, 22 nd Edition, at page 641, against the subject of opium poisoning—which though not very apt as the instant case is not of poisoning but taking of opium as addict—reveal that there is first stage of Excitement or Euphoria during which the symptoms are, increased sense of well being, including loquacity or even hallucinations and reveal flushing of the face. The very admission of the petitioner about being an opium addict and the further fact with regard to symptoms revealed by taking opium pills, create a doubt in the mind whether he had taken alcoholic drink. It is also the further fact that the Excise Inspector of the area in all probability had known about the fact that the petitioner was addict who has been per­ mitted to purchase opium of a particular quantity and the fact that the peti­ tioner even in his evidence familiarly referred to him as 'Shah Sahib', and the fact that he was found being loquacious and noisy near the canteen makes his explanation that he had come out to purchase cigarette, plausi­ ble. In the instant case there is no allegation or assertion that the peti­ tioner also was at any time seen actually drinking alcoholic intoxicant by any one and the suspicion against him admittedly arose because of his loquacity and exuberant behaviour. Giving him benefit of doubt, there­ fore he isacquitted of the charge under Article 11 of the Order. He has already undergone R. I. for fix months as for the reasons stated the appeal could not be heard and decided earlier. However, in view of the fact that the appeal has been allowed, the further sentence of whipping num­ bering 15 stripes is set aside. (TQM) Order accordingly;

P L J 1984 FSC 150 P L J 1984 FSC 150 (Appellate Jurisdiction) Present : FAKHR-E-ALAM, J ISHFAQ-Appellant ver,f«,y THE STATE.—Respondent Criminal Appeal No. 38/1 of 1984, decided on 17-6-1984 (i) Offence of Zing (Enforcement of Hadood) Ordinance (VII of 1979). —~S. 10 (3)— Zina-bil-jabr—OSsace of—Victim allegedly forcibly car­ ried upto 20 karams but not even simple scratch as result of violence found on her body—Clothes of victim also found in order and even string of her trouser remaining intact—Held : Absence of marks of violence on body or clothes being highly improbable, allegation of Zina-bil-jabr to be easily brushed aside. [P, 151J.4 (ii) Olfence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— —S. 10 (3)— Zina-bil'jabr — Offence of—Conviction for—Prcsecutrix, girl of easy virtues, surprised by abandoned witnesses while having sexual intercourse of her own free will—Held : Case of forcible sexual intercourse having been made out only oa being detected, statement of prosecutrix to lose all credibility of independent state­ ment in such case of wilful intercourse, [P. !5!]S Mr. M. Bilal, Advocate for Appellant. Mr. Mohammad Aslamuns, Advocate for State. Date of hearing : 17-6-1984. JUDGMENT For the offence of Zina-Bil-Jabr under section 10 (3) of the Ordinance VII of 1979 committed on 21-7-1983 at 9 00 a.m. in the field of Gul Hussain Shah and Irshad Hussain Shah village Chinna Police Station Bhakkar Saddar, Ishfaq son of Imam Bakfash, aged 17/18 years resident of Mauza Chanda stands convicted aod sentenced to 10 years R. I. and 30 stripes. The conviction and sentence has been assailed by filing the present appeal by the convict-appellant. 2. The prosecution version of the incident as brought out at the trial is that on 21-7-1983 at about 9-00 a.m., Mst, Saffo Mai after serving meals to her father Kalu Khan P, W. was on her way back to the home, as she was passing near the sugarcane fields of Gul Hussain Shah, the accused Ishfaq caught her, dragged her ias»de the sugarcane field and there putting her on the ground and detrousering her, committed zina-biljabr with her. Mst. Saffo Mai the victim raised an alarm which attracted Aziz Hussain and Ijaz Hussain the abandoned P. Ws, On their arrival Ishfaq accussd picking up his chadder, ran away from the spot. The inci­ dent was narrated to Kalu Khan her father and in his company Mst. Saffo Mai went to the Police Station Bhakkar Saddar where a report was lodged the same day at 3-00 p.m. Direct account about the offence was famished by Mst, Saffo Mai P. W, ooly who according to the prosecution was 13/14 years old at the time of delict. The two witnesses Aziz Hussain and Ijaz Hussain were abandoned by the prosecution for the reason that they were woo over by the defence. 3. Lady Doctor Mrs. Arjamand Bano Rafiq (P. W. 5) who examined Mft, Saffo Mai oa the next day of the crime observed that the victim was a gir! of moderately short built. No marks of violence were found oa the body including the private parts. Her breasts were fully developed. Two vagina! swabs were taken for detection of semen and sent to the Chemical Examiner whose report was positive. The Doctor opined that she could not give the correct age of the victim for which purpose she advised X-Ray to determine it after the ossification of bones was carried out. It was also observed by the Doctor that the victim had undergone few acts of sexual intercourse prior to the examination and that she was not virgin, as the hymen showed aid healed lacerations with soft fibroces. As the whole case of the prosecution gyrates round the version of Mst. Saffo Mai the victim alone, on carefully vetting the same, one can easily brush aside the allegation of zina-bil-jabr^ in that not a simple scratch as a result of violence was found on her body. Her clothes two were found in order and not torn, even the string of the trousers was intact. In case as it is alleged the victim was forcibly carried upto 20 karams and during all this process she was resisting, absence of marks of violence on the body or the clothes is highly un-natural. Delay in getting the victim examined by the Lady Doctor has not been plausibly explained. According to Mst. Saffo Mai and the Investigation Officer: the Lady Doctor was not available in the Hospital on 21-7-1983 and therefore, the medical examination was done on 22-7-1983, whereas according to Kalu Khan father of the victim who was accompanying here the victim was not taken to the hospital on 21-7-1983 and for the first time she in his company went to the hospital on the next.day of the occurrence. Mst. Saffo Mai had blown hot and cold in the same breath. At one place she stated that she did not know the accused or his name, whereas at another place she said that she knew him since before. 4. The learned counsel representing the State argued that Mst. Mai was not pubert at the time of zina-bil-jabr. There is no evidence to this effect. On the other hand, according to the Lady Doctor she had fully developed breasts. It was the prosecution to have proved that the victim was not pubert. The over-all picture that emerges fro m t!he evidence is that Mst. Saffo Mai, a girl of easy virtues, was of her own free will having sexual intercourse and when they were surprised by the two abandoned witnesses, on having been detected a case of forcible sexual intercourse was made out by her. In case of wilful intercourse Mst. Saffo Mai would be equally guilty of zina and, therefore, her statement, will lose ai! credibility of an independent statement as it wil 1 be the version given by an accomplice. 5. For the reasons out-lined here-in-before, the case of the prosecu­ tion bristles with reasonable doubt. Extending the benefit of the same to the accused appellaut, the appeal is accepted, the conviction and sentence awarded are set aside. Ishfaq appellant shall be released forthwith if not required in any other matter. (TQM) Appeal accepted,

PLJ 1984 FSC 152 PLJ 1984 FSC 152 [Appellate Jurisdiction] Present : MUHAMMAD SIDDIQ, J Mst SIANI—Appellant versus THE STATE-Respondent Criminal Appeal No. 169/L of 1983, decided on 14-5-1984. (i) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979}.

S. 10— Zina— Offence of—Proof of^Unmarried girl—Presence of milk in breasts of—Effect of—Held : Presence of milk in breasts of unmarried girl generally to cast some doubt about virginity of such girl—Such circumstance alone, however, not to be sufficient to prove charge under S. 10 of Ordinance against accused. [P. I5t & 157 \A & B Modi's Medical Jurisprudence of Toxicology ref. (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)— —S. 10—Zina—Charge of—Proof of—Medical expert-—Statement of— Effect of — Held : Statement of medical expert not to be considered as only or best method of proving charge of Zina against accused person. [P. i57]D 1968 SCMR 1126 ref. (Hi) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)- —S. 10 read with Pakistan Penal Code (XLV of I860)—Ss. 315 & 318— Zina —Charge of—Proof of—No direct or positive evidence produced by prosecution to substantiate charge (under S. lu of Ordinance) against appellant except statement of lady doctor—Held : In absence of some direct or circumstantial evidence connecting appellant with offence charged, medical evidence alone not to be sufficient to maintain conviction of appellant under S. 10 of Ordinance. [P. ]E (it) Offence of Zina (Enforcement ojf Hadood) Ordinance (VII of 1979)-

-S. 10 read with Pakistan Penal Code (XLV of I860)—Ss. 315 & 318— Zina —Offence of—Conviction for—Appellant not shown to be consenting party to sexual intercourse illegally committed by co-accused—No evidence even produced to establish her illegal pregn­ ancy and abortion—Held : Mere alleged abortion in circumstances not to be Sufficient to connect appellant under S. 10 of Ordinances. [P.158]F (t) Pakistan Penal Code (XLV of I860)— —Ss. 315 & 318 read with Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—S 10—Abortion and secret disposal of dead body—Offence of—Conviction for—Challenge to—Appellant convicted and sentenced under Ss. 315 & 318 of Penal Code in total absence of any oral or circumstantial evidence produced by prosecu­ tion—Held : Convictions and sentences awarded by trial Court to be set aside. [P. 159]G & H (vi) Criminal Trial—

Expert evidence-—Conviction—Basis for—Held: Expert evidence of doctor alone normally not to be sufficient to base conviction -Held farther : Such evidence though providing piece of independent corroboration by itself not to be made foundation of conviction in criminal cases. [P. ]C (vii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10— See: Pakistan Penal Code (XLV of I860)—Ss. 315 & 318. (viii) Pakistan Penal Code (XLV of I860)—

Ss. 315 & 318— See : Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)-S. 10. Malik Waqar Saleem, Advocate for Appellant. Mr. Sbabbir Lali, Advocate for State. » Date of bearing : 28-2-1984. JUDGMENT This is an appeal under section 20 of the Offence of Zina (Enforce­ ment of Hadood) Ordinance, 1979 (hereinafter referred to as the Ordinance) against the impugned judgment of the Additional Sessions Judge, Vehari Camp at Mailsi dated the 4th September, 1983, whereby Mst. Siani accused was found guilty and sentenced as under :— U/s 10 of the Ordinance R. I. for 5 years plus 30 stripes and a fine of Rs. 1,000/- or in default of payment of fine further R. I. for 6 months U/s 315 PPC = R. I. for 5 years. U/s 318 PPC » R. 1. for one year. The sentences of imprisonment were ordered to run concurrently. 2. In support of its case the prosecution produced 9 witnesses, Sardar Khan (P. W. 1) is the Lumbardar of Cbak No. 110 W. B. According to him he was present at his dera alongwith Boota Chokidar. Bashir (P W.) informed him that a dead body of a child was lying in his residential ehata having been thrown by someone. Nothing else was revealed to him by the Said Bashir. "Again said Bashir told him that according to his wife Mst. Sardaran Bibi, Mst. Siani accused who was virgin appeared pregnant and that the dead body of the child was the same which had been caused in miscarriage. This witness left Boota and Bahir there with the dead body and himself went to the police post, Tibba Sultanpur and made report Ex, P. A. which was not read over \o him. In cross-examination he admitted that Mst. Siani accused was wife of Pahalwan and Sardaran Bibi (P. W ) had not talked to him over th s matter Bashir (P. W.) has stated that he had his residential ehaia in Chak No. 110 W. B He found d ad body of a child lying in the south east corner of the ehata Sardar Khan (P W.) was posted with it. Sardaran Bibi is his wife. She )>aw the dead body of the child. He has further deposited that Mst. Siani accused was not on visiting terms with them and his wife did not inform him about the pregnancy of Mst. Siani accused. Then Sardar Khan, Lumbardar (P W ) le f t him and Chowkidar at the spot and himself went to police post to inform it about this matter. The Police then reached the spot and seized the dead body of the child. Mst Sardaran (P W. 3) is the wife of Bashir (P W.) She has stated in examination in chief that 1J years ago a dead body of a child was found lying in her ehata. Mst. Siani accused who was living in their neighbourhood was known to her. This witness has further deposed that she did not ob-erve that while being virgin Mst Siani got pregnant and she did not tell this witness that she got conceived from Ghulam Najaf accused. At this stage Mst, Sardaran P, W was declared hostile and ADA was allowed to cross-examine her. In cross-examination by ADA she has denied the suggestion that Msi. Siani told her that she conceived from Ghulam Najaf and now she wanted to miscarry. It is further stated by her that she did not inform the police that Mst. Siani accused had secretly miscarried and threw the dead body of the child in her ehata. She further denied that she was won over by the accused . Sardar Saeed Jaffar, Magistrate Lt Class (P. W. 4) on 29 10-1981 recorded tbe confessional statement of Mst. Siani (Ex. P. B.). It may be observed that this confessional statement has been rightiy dis­ believed by tbe trial court. Muhammad Boota Chowkidar (P. W. 5) was also declared hostile. In cross-examination he has admitted that about H years ago Bashir informed him and Sardar K an P. W. about the presence of foetus of still born child in his compound. Tney went to the spot and saw the dead bod\ there. He denied the suggestion that he and the companions suspected Mst. Siani of this crime. He did not know Najaf acquitted co-accused. He denied the suggestion that Mst. Siani was of bad character and had illicit relations with Najaf co-accused. 3. Lady Dr. Shahnaz Akhtar (P. W. 6} on 22 10-1981 at 5-0. P.M. examined Mst, Siani and found the following observations :— "(1) 20 years old woman having full developed breast with black aerola and milk was present in breast. Breast was pandulous and abdomen was not flaccid. (2) No linea nable was marked on the lower abdomen." On vaginal examination, hymen torn from all side but no sign of injury in vagina or in uterus, white offensive discharge was present in vagina. Size of uterus was normal. In my opinion she aborted foetus 12 days back." In cross examination the lady doctor has stated that she could not say if it was a case of intentional miscarriage or otherwise. Dr. M. A. Raoof (P. W. 7) on 23-10-1981 conducted post mortem examination on the dead body of nknown male foetus. The dead body was of a male foetus in a decomposed condition. The maggots were crawling over the dead body and the dead body was eaten up at various parts. The skull was open and the eyes were collapsed. Its length was 31 c.m., and weight one killo gram. The skull was open and brain collapsed. There was no mark of any recent injury seen. All the internal organs were undergoing decomposi­ tion. In the opinion of the doctor the foetus was still born and was about 24 weeks old. Time between death and post mortem was about 3-4 days. Rustam Ali H. C. (P. W. 8) on receipt of Ex. P. A. recorded the formal F.I.R. Ex. P,A./1 S. I. Syed Asghar Ali Shah is the Investi­ gating Officer. 4. Mst. Siani in her statement recorded under section 342 Cr. P. C. denied the prosecution allegations and stated that she was a married woman and did not resort to zina with Ghulara Najaf co-accused. When asked why this case was made against her and why the P. Ws. had de­ posed against her, she stated that a false case had beea fabricated by the police due to connivance of her enemies. She however produced no evidence in defance. 5. Ghulam Najaf, co-accused in his statement also denied the prosecution allegations. 6. The trial Court videimpugned judgment acquitted Ghulam Najaf, co-accused but convicted and sentenced Mst. Siani as stated above, 7. I have heard at length the counsel for the parties and have also perused the entire material available on the record. 8. It is an admitted fact that there is no direct evidence available on the record to prove the charge against the accused. As mentioned above Mst Sardaran and Chowkidar Boota (P. Ws.) were declared hostile. It may be observed that Msi, Sardaran P. W. according to the prosecution had informed her husband Bashir P. W. and then Bashir further conveyed the information to Lambardar Sardar Khan P. W. Mst. Sardaran has not supported the prosecution, therefore the foundation of the prosecution case as to how the prosecution story was initiated, is missing The learned State counsel admits that there is no direct evidence available on the record but according to him the medical evidence in this,case is sufficient to maintain the conviction of the appellant. As mentioned above Mst. • Siani war medically examined by lady doctor who found that black areola and milk was present in breast of the appellant Breast was pandulous and abdomen was not flaccid, and no linea nable was marked on the lower abdomen. The lady doctor further found that the hymen was torn from all side but no sign of injury in vagina or in uterus but white offensive discharge was present in vagina In the opinion of the lady doctor Mst. Siani aborted foetus 12 days back. Further reliance is placed by the State counsel oia the statement of Dr. Raoof P, W. who performed the post mortem examination on the dead body of an unknown male foetus. The argument of the State counsel is that the statements of these two doctors are sufficient to mantain the conviction of the appellant. On the other hand the contention of the learned defence counsel is that the medical evidence ailone is not sufficient to convict the appellant for the offences charged. It is further argued by the defence counsel that the finding of the trial Court that Mst. Siani was unmarried girl when she conceived of the foetus it based upon no evidence. Mst. Siani in her statement under section 342 Cr. P. C. has stated that in April-May 1981 she was a married woman and did not resort to zina with Ghulam Najaf, acquitted coaccused. She has further denied the allegation that she being unmarried got pregnant and then caused himself subjected to miscarriage in the month of October, 1981. Again in reply to question No. 7 Afst. Siani has denied the prosecution allegation and stated that she had not aborted till then. The prosecution has brought no material on record to rebut the stand taken up by Mst. Siani except the evidence of the lady doctor Shahnaz Akhtar P. W. 9. As regards this charge of zina under section 10 of the Ordinance against Mst. Siani, accused it is an admitted fact that prosecution has produced no direct evidence—Oral or circumstantial, to substantiate this charge. As mentioned above the prosecution was relying upon Mst. Sardaran, P. W. wife of P. W. 3 but she did not support the prosecution and was declared hostile. She has deposed that Mst. Siani was known to her who lived in her neighbourhood but she did not observe that while being virgin she got pregnant and she did not tell the witness that she got conceived from Ghulatn Najaf acquitted co-accused. It was at this stage that at the instance of ADA Mst, Sardaran was declared hostile and was allowed to be cross-examined by him. The ADA in her cross-examination could not get anything in favourable of the prosecution. She was the found­ ation of the prosecution case as she conveyed this information to her husband Bashir, P. W. who further informed Sardar Khan Lambardar (P.W. 1) who lodged the report with the police. Muhammad Boota, Chaukidar also did not support the prosecution case and was declared hostile and was allowed to be cross-examined by the ADA but even in the cross-examina­ tion could be brought on the record in favour of th; prosecution. Other witnesses in the case are formal and official ones. It is in this factual back-ground that the learned State counsel has mainly relied upon the medical evidence for maintaining the conviction of the appellant. Thus the main question which arises for consideration in this case is whether in the peculiar circumstances of the case, on the medical evidence alone the conviction of Mst Siani accused under section 10 of the Ordinance can be maintained or not. According to the State counsel the presence of milk in her breasts was clear indication that she had recently aborted, and being unmarried must have illegally conceived. No doubt the lady Doctor Shahnaz Akhtar (P. W.) whose report has already been reproduced above, has mentioned the presence of miik in the breasts of Mst. Siani accused but we have to see whether this is a conclusive proof that she had aborted or delivered a child recently as a result of illegal cohabition with co-ac­ cused Ghulam Najaf or some one else. Generally speaking the presence of milk in the breasts of an unmarried girl casts some doubt about her virginity but we have to see the effect of presence of such milk strictly from legal point of view. Some medical authorities have found milk in the breasts of women, who had never been pregnant. Reliance in this behalf can safely be placed upon the following from Modi's Medical Jurispru­ dence and Toxicology (Pakistan Edition) : — "By the third month a clear, transparent secretion can be squeezed out of the nipples on pressing the breasts. This contains colostrum or milk, as pregnancy advances. Milk has, however, • appeared in the breasts of women who have not been pregnant. Jago 1 reports a case in which a woman, who had never been pregnant, had a copious flow of milk from her breasts, and suckled a child of another woman. David 2 . Krestin also reports the case of an unmarried woman, age 25 years, with hymen intact, who had enlarged breasts, which yielded milk on compression due to enlargement of the pituitary fossa." Thus mere presence of milk in the breasts of Mst. Siani appellant woul not conclusively establish that she recently aborted or delivered a childj after illegal conception from co-accused Ghulam Najaf or any othe person. In any case this circumstance alone is not sufficient to prove the) charge under section 10 of the Ordinance against the accused. 10. The statement of the lady doctor Shahnaz Akhtar P. W. as an expert is covered by section 45 of the Evidence Act. Even if we believe and accept the medical evidence, the next question which arises is as to the value of such medical evidence—whether medical evidence alone can be made basis of the conviction or not. Normally it is not safe to treat expert evidence of a doctor alone as sufficient to base the conviction. Such evidence can provide as a piece of independent corroboration but it itself cannot be made the foundation of the conviction in criminal cases. Late Chief Justice Hamoodur Rahman in Syed Sabbir Hussain's case (1968 SCMR 1126) while dealing with the evidence of hand-writing expert was pleased to observe that such evidence is neither the only nor the best method of proving hand writing or signature of a person. On the same analogy it can reasonably be held that statement of medical expert (doctor) cannot be considered as the only or the best method of proving the charge of zina against an accused person. Consequently the statement of the lady Dr. Shahnaz Akhtar (P. W ) alone cannot be made the basis of the conviction of Mst. Siani accused under section 10 of the Ordinance. In the instant case it is an admitted fact that there is no other direct or positive evidence produced by the prosecution to substantiate the charge under section 10 of the Ordinance against Mst. Siani appellant. In addition to the medical evidence the prosecution should have produced some other direct or circumstantial evidence to connect the appellant with the offence charged. In the absence of such evidence the medical evidence alone is not sufficient to maintain ihe conviction of the appellant under section 10 of the Ordinance and it is not safe to presume in favour of the prosecution that Mst. Siani appellant illegally conceived from Ghulam Najaf acquitted coaccused or someone else resulting in illegal abortion. If, for example, an unmarried girl or a widow has been subjected to zina forcibly against her will or during her sleep or under some intoxicant or under suspicion about her identity resulting in her conception and ultimately giving birth to a child, she will not be held guilty under section 10 of the Ordinance unless the prosecution further establishes by direct or circumstantial evidence that she was a consenting party for the commission of sexual inter­ course. 11. Another question therefore which is relevant in this regard is whether Mst. Siani accused was a consenting party for the sexual inter­ course committed with her by co-accused Ghulam Najaf or it was zina~bil- 1. Kenya and East Africa Med. Jour, July 1927 P-144. 2. Proceedings of the Royal 5oc. of Med. April 1952 P. 693. jabr against her will, resulting in her pregnancy and then abortion. This Court has already held in several cases that a mere pregnancy/abortion or birth of an illegitimate child of an unmarried girl/widow or a married woman whose husband had no access to her during the relevant period, could not be suffibisnt to hold her guilty under sectnn 10 of the Ordi­ nance unless it is further proved by the prosecution that she was a con­ senting party for the said zina resulting first in her conception and then in abortion. In the instant case there is nothing on thi record to show that Mst. Siani appellant was a consenting party to sexual intercourse illegally commi'ted by Ghulam Najaf, co-accused. Further the prosecution has produced no evidence whatever to establish her illegal pregnancy and abortion. Thus in the circumstances the m:re alleged abortion of Mst. Siani appellant is not sufficient to convict her under section 10 of the Ordinance. It was further necessary for the prosecution first to prove that Mst. Siani appellant had illegal intercourse with co-accused Ghulam Najaf resulting in her conception and then also to prove that she illegally aborted. The prosecution miserably failed to prove the same. Thus the mere presence of body of a dead child (foetus) in the ehata of Bashir (P.W.) would not prove that it was the foetus of Mst. Siani as a result of illegal conception from co-accused Ghulam Najaf. 12. The charge framed under sections 315 and 318 P. P. C. against Mst. Siani, appellant was as under :— "I, Mr. Nazir Ahmad Ansari, Additional Sessions Judge, Vehari, charge you, Siani, daughter of Shah Muhammad and Ghulam Najaf son of Sher Muhammad, accused as under : (1) That you both indulged in zina 24 weeks prior to 22-10-1981 resulting in pregnancy of Mst. Siani accused which is punish­ able under section 10 of the Zina Ordinance. (2) That after 24 weeks of the pregnancy of Mst. Siani accused caused the miscarriage in chak No. 110/W. B. Tchsil Mailsi, with intent to prevent child being born alive or with intent to cause it to die after birth which is punishable under section 315 P. P. C. (3) That after miscarriage you threw the dead body in the resi­ dential ehata of Bashir son of Din Muhammad situated in chak No. 110/W. B. -vith intent to conceal the birth of the child which is punishable under section 318 P. P. C. It is therefore directed that you both be tried for the aforesaid offences before this court which is competent". Section 315 P. P. C. is also reproduced below :— "Act done with intent to prevent child being born alive or to cause it to die after birth . Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother ; be punishable with imprisonment of either description for a term which may extend to ten years, or with fine or with both." A mere perusal of the above shows that before the prosecution could succeed to secure the conviction of Mst, Siani, appellant under section 315 P. P. C , it was necessary to prove that she was pregnant at the relevant time and that she did some act before the birth of the child, calculated to prevent the child from being born alive or to cause it to die after its birth. It was further necessary for the prosecution to establish that the said act of the accused was done with the said intention and not in good faith to save her own life and that Mst. Siani actually delivered a child or aborted and the said child was born dead or died after its birth and the appellant caused death. The prosecution has produced no evidence to prove the main ingredients of section 315 P. P. C. 13. Same is the position about the charge under section 318 P. P. C. This section is also reproduced below :— "Concealment of birth by secret disposal of dead body :— Who­ ever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child shall be punished with imprisonment of either descrip­ tion for a term which may extend to two years, or with fine, or with both." According to the provisions of section 318 P. P. C. it was necessary for the prosecution first to prove that Mst. Siani gave birth to a child who died either before, during or after its birth and thatshe burried or disposed of the said dead body by throwing it in the ehata of Bashir P. W. Again there is not an iota of evidence on the record to substantiate this charge against the present appellant. 14. It is surprising that in total absence of any evidence-oral or circumstantial, produced by the prosecution, Mst Siani appellant has been convicted and sentenced under sections 315 and 318 P. P. C. by the trial Court. The learned State counsel has not been able to support her con­ viction under the said sections, 13. For the foregoing reasons this appeal is accepted and the con-j victions and sentences awarded to Mst, Siani by the trial Court are setlff aside. She is acquitted of the charges. She is already on bail and her| bail bond stands discharged. (TQM) Appeal accepted.

PLJ 1984 FSC 160 PLJ 1984 FSC 160 [Appellate Jurisdiction] Present : B. G. N. KAZI, J MUHAMMAD NAWAZ—Appellant vessus THE STATE—Respondent Criminal Appeal No. 26/1 of 1984, decided on 3-6-1984. (i) Offence of Zina (Enforcement of Hadood) Ordinance (Vll of 1979)—

S. 10— Zina— Offence of—Prosecutrix — Testimony of—Corroboration—Prosecutrix admittedly married women living with her husband at relevant time—Held : Fact of marks of semen and blood having been found on vaginal swabs and shalwar by Chemical Examiner in itself not to be sufficient evidence to corroborate testimony of prosecutrix. [P. 163JC (ii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10— Zina— Offence of—Conviction for—Hue and cry allegedly raised by prosecutrix attracting none of persons working near scene of occurrence—No drag marks on ground or injuries on person of victim found—Even delay in filing FIR not adequately explained—No circumstantial or other independent reliable evidence corroborating testimony of prosecutrix (a full grown married woman having three children)—Held : Uncorroborated evidence of pro­ secutrix not to be sufficient to prove guilt of appellant. [Pp. 162, 163 & 164]A, B&D (iii) Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979)—

S. 10— Zina— Offence of—Proof of—Held : Prosecution to be required to martial evidence against accused person and to prove such person to be guilty beyond doubt—Proof not forthcoming to extent required—Held : Accused to feave benefit of doubt. [P. 164]£ Mr. M. Bilal, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for Respondent. Dates of hearing : 2 & 3-6-1984. JUDGMENT The appellant was sent up in the Court of the Additional Ses»ions Judge, Bnakkar, by Kallurkot police station, to stand his trial under sections 6/11 of the Ordinance of Zina (Enforcement of Hadood Ordi­ nance, 1979 (bere-m-alter referred to as the Ordinance) on the allega­ tion of abducting Mst. Nawab gibi wife of Ghulam Muhammad and committing zina bil-jabr with her on. 29-8-1982 at about degar-wela, in the area of village Chan Dhudi. The trial Court charged the appellant under section 10 (3) of the Ordinance on 21-9-1983 but amended the same to section 10 (2) of the Ordinance on 22-9-1983 and convicted him under that section sentencing him to suffer R. I. for five years and whipping numbering fifteen stripes. The instant appeal has been filed against the aforesaid conviction and sentences. 2. The facts of the prosecution 'case as briefly stated are as under:—- Mst. Nawab Bibi, wife of complainant Ghulam Muhammad was cutt­ ing grass in her field in village Chah Ohudi at about degar-wela, while her husband Ghulam Muhammad alongwith Muhammad Bakhsh were cleaning the water course at a distance of about 150 'harms' to the south, Mst. Nawab Bibi married Ghulam Muhammad about five years before the incident and had three children from him. The appellant, a young man aged about 20 years, who was admittedly brother of Mst. Noor Bibi, the previous wife of complainant Ghulam Muhammad, came there and after taking her in 'japha' forcibly lifted her across the water course and took her to Bojra crop where he opened her shalwar and forcibly committed :ina bil-jabr with her. It was further case of the prosecution that Mst. Nawab Bibi raised hue and cry on hearing which her husband Ghulam Muhammad alongwith Muhammad Bakhsh, Amir Muhammad and Ghulam Haider came rushing and all the four saw the accused in the very act of committing zina. The appellant on seeing them took his chader and ran away. Mst. Nawab Bibi and her husband Ghulam Muhammad went to the Head of the Minnor for taking bus to the police station to report the matter. However, they could not get any bus and went home. The next day at about 'Fajr-Wela they left their house for the police station, On reaching there, however, they were made to sit till Degar-Wela when the police asked Mst. Nawab Bibi to get herself medically examined before the registration of her complaint. She and her husband then went to the Hospital in Bhakkar and met the lady doctor who, however, refused to examine Mst. Nawab Bibi on the plea that there should be a reference from the police or order of a Magistrate before she medically examined Mst. Nawab Bibi. They then went to Kallurkot and made an application to the Magistrate Kallurkot the next day. On the direction of the Magistrate the lady doctor examined Mst. Nawab Bibi that day and after obtaining the medical report she left for police station. However, on the way to Killurkot bus stand they met the Thanedar and a Foot-Constable. She then made a report which was taken down by the Thanedar, read over to her and she had thumb-marked. The Thanedar then sent the report for registration to the police station. The SIP directed the case be shown to be under Section 354 P.P.C. The investigation continued and it was on 14-9-1982 when the Prosecuting Inspector, Bhakkar, pointed out that the case was one falling under sections 11/6 of the Ordinance because Mst. Nawab Bibi had been forcibly taken from the place where she was cutting grass to the Bajra field where she was raped. Accordingly the case was sent back to the S.H.O. Kallurkot who recorded the supplementary state­ ments of the eye-witnesses on 20-2-1983 about having actually seen the appellant with his male organ penetrating the vagina. 3. On behalf of the prosecution 11 witnesses were examined at the trial namely Dr. Mrs. Arjamand Bano Rafi, who examined Mst. Nawab Bibi, Dr. Nazar Hussain. who examined the appellant for potency ; and police officials Amanullah Khan, Inspector Police, Sajjad Hussain Shah, S.H.O. Taj Muhammad, H. C and Ghulam Akbar H. C. who participat­ ed in the investigation. Mst Nawab Bibi, the prosecutrix, her husband Ghulam Muhammad, and alleged eye-witnesses Muhammad Amir, Ghulam Haider and Muhammad Bakhsh, 4. The appellant in his examination under Section 342 Cr. P. C. denied the charges and stated that the witnesses who were near relations of Ghulam Muhammad, husband of the prosecutrix had deposed against him on account of enmity with him. He further stated that his sister Mst. fJoor Bibi was formerly married to Ghulam Muhammad and in return Mst. Azmat Khatoon sister of Ghuiam Muhammad had been married to his uncle Gulsher. The aforesaid Azmat Khatoon gave birth to child in the fifth month of her marriage. His uncle Gulsher accused Mst. Azmat Khatoon of giving birth to an illegitimate child and, therefore, there was dispute on account of which he had brought his sister Noor Bibi back aad had demanded divorce from Ghulam Muhammad. Due to the disr=i,te Ghulam Muhammad had afterward divorced his sister and his uncle b Jlsher divorced Mst. Azmat Bibi. Mst. Noor Bibi before her divorce had accused Nawab Bibi of loose morals and bad character Due to all these facts Ghulam Muhammad had felt annoyed and had got him falsely implicated. 5. There can be no doubt about the fact that it was sought to make out an offencs punishable with hadd against the ppellant as the requisite number of eye-witnesses namely four had been put forward to make the statement that they had positively seen the appellant committing the act of zina namely that they had all seen him penetrating into vagina of the prosecutrix with his male organ. However, for reasons given by the learned Additional Sessions Judge, the evidence of the four eye­ witnesses was not believed and the learned trial Judge for the reasons given by him considered Mst. Nawab Bibi to be a consenting party, and, therefore convicted the accused only under section 10 (2) of the Ordinance. 6. There were admittedly persons working near the scene of offence and, therefore, if in fact Mst. Nawab Bibi had raised hue and cry, it would not have been possible for the appellant to commit zina-bil-jabr. There were no drag marks on the ground and there were no injuries found on the person of the alleged victim, namely the back, elbows etc. which, if she had been thrown on her back should have appeared. The alleged dragging would also have resulted in injuries at least in abrasions and scratches on her back. The learned Judge rightly observed that the place in the bajra field was only ten '/ca/ms' away from the place where it was alleged that Mst. Nawab Bibi had been captured and both the places being too near for others to hear cries and intervene, there could be no sense in taking the victim for those ten 'harms' for offence of raj,e. 7. It is also significant to note that S.H.O., Sajjad Hussain Shah, who was declared hostile, had denied the fact that the prosecutrix and her husband had come to the police station on the next day of the occurrence in the morning and he had been made them sit till dagar-wela and had refused to record her complaint saying that she should first get herself medically examined. He also admitted that there was nothing in the statement of Mst, Nawab Bibi which she bad first made to him that the witnesses had seen the penetration. Even the witnesses themselves in their earlier statements had not deposed to that effect. The S.H.O. further ad­ mitted that as against the four alleged eye-witnesses some 40 persons had made statement that Nawab Bibi was woman of bad character and the appellant had been falsely implicated. 8. H. C. Ghulam Akbar who had been deputed by the S.H.O. to investigate the case had gone to the spot and had prepared the site plan. He had admitted that the numbers given in the site plan to places had subsequently been changed. The witness admitted that he did not see any cut grass lying on the spot, where Mst. Nawab Bibi was said to have been cutting it. It is also apparent from the evidence on record that the chader used while wading-through water course and the sicide were never secured by the oolice as evidence in the case. Ghulam Akhtar also admitted that he had not seen any signs of cutting of grass He further stated that he did not find any drag marks from the point where Mst. Nawab Bibi was captured to the point where she was said to have been raped. 9. It is also clear that the delay in filing of the FIR by the prosecu-I trix is not adequately explained specially in view of the fact that thelfl police officer concerned denied the fact that the prosecutrix was made tol sif till degar-wela or that he had at any time demanded medical certificate before registering the case. It may here be observed that according to the prosecutrix order for her medical examination was passed by the Resident Magi trate but no such document has not been brought on the record at all, either by the lady doctor or by the investigating officer It is also not easily concievable as to how unless the prosecutrix had been referred to the Magistrate for recording her statement or unless a direct complaint had been filed before him, he could record the statement of the prosecutrix or pass orders for her being medically examined. 10. There is allegation of the prosecutrix that she purchased a shalwar from the 'Landa' bazar as her shalwar was taken away by the lady doctor for being sent to the Chemical Examiner. The procedure if adopt­ ed, would appear to be unprecedented inasmuch as police should have secured the shahvar of the prosecutrix and sent the same to the Chemical Examiner. In the instant case there is no evidence at all about such recovery and there is no evidence of chain of witnesses to prove that the shalwar so recovered and swabs were delivered for examination and test to the Chemical Examiner. 11. The fact that marks of semen and blood were found on thei vaginal swabs and the shalwar by the Chemical Examiner in itself is notL sufficient evidence to corroborate the testimony of the prosecutrix inasmuch! as, she is admittedly a married woman, who at the time was lying with) her husband and she was menstruating at the time. Mr. M. Bilal. The learned counsel for the appellant, has pointed out that according to Mst. Nawab Bibi she had been menstruating even at th time of the commission of the alleged offence and she further admitted that she was not wearing a wad or dapper. It is, therefore, hard to believe that she musi have been wearing the same shalwar al! the time and further there is also no evidence on the record to show the trial of blood she must have left at any place th'at she had been to, including the scene of offence. The learned counsel for the appellant has further pointed out that the shalwar was not pro­ duced as an exhibit at the trial court. 12. As already stated the testimony of the four alleged eye-witnesses was discarded by the trial court and although the learned Judge made the observation that some of the witnesses might have seen the appellant and Mst. Nawab Bibi together, in the absence of direct evidence and naming of such witnesses, it would be only a matter of surmise or conjucture, which could not be depended upon for sustaining a conviction. Thus the only evidence against the appellant is that Mst. Nawab Bibi a full grown married woman having three children, who according to the defence plea taken by the appellant, is a woman of easy morals and loose character. As already stated, there is no circumstantial evidence or other independent reliable evidence to corroborate her testimony. The fact that her testi­ mony was disbelieved by the trial court with regard io zina-bil-jabr and also the fact that although she had according to her, a sickle in her hand which she did not only use to have herself there is no allegation that the appellant was armed with any weapon her uncorroborated evidence, as already stated, is not sufficient to prove the guilt of the appellant. Mr. Muhammad Aslam Uns., the learned counsel for the State has indeed con­ tended that any mistake in the inyestigation of the case by the police should not be considered sufficient to discredit the prosecution case Ibut it is observed that it is for the prosecution to material the Jevidence against an accused person and to prove such person to ^be guilty beyond doubt. If under any circumstances the proof is not (forthcoming to the extent required, the accused shall have the benefit of doubt. Accordingly, I give benefit of doubt to the appellant, allow his appeal and set aside his conviction and sentences. He is in Jail custody and he shall be released forthwith if not required in any other case. Such short order was directed to be issued to the Jail authorities after hearing the arguments of the learned counsel for the parties and the grounds for the decision have been recorded above. (TQM) Appeal accepted.

PLJ 1984 FSC 164 PLJ 1984 FSC 164 [Original Jurisdiction] Present : AFTAB HUSSAIN, C. J., ALI HUSSAIN QAZ1LBASH, Ch. MUHAMMAD SIDDIQ & MALIK GHULAM ALI, JJ In re : Industrial Relations Ordinance (XXIII of 1969) Shariat Suo Moto Nos. 226/82 & (W. P.) 3/83. decided on 10-9-1983. (i) Constitution of Pakistan, 1973—

Art. 203-D read with Industrial Relations Ordinance (XXIil of 1969) & Industrial and Commercial Employment (Standing Orders) Ordinance (W. P. Ord. VI of 1968)—Labour laws—Validity of— Injunction of Islam—Repugnancy to—Object of law being to pro­ mote amity and goodwill between workers and employers and to eliminate mischief caused by mutual recurring disputes, law contain­ ed in Ordinance XXIII of 1969 and W. P. Ordinance VI of 1968 having advanced purpose of industrialisation in country, same to be valid in all respect and not to be repugnant to Shariah, [Pp. 207 & 208]S & W (ii) Industrial Relations Ordinance (XXIII of 1969)—

S. 3 read with Constitution of Pakistan. 1973-Art. 203-D—Trade union—Formation of—Held : Formation of trade union and ap­ pointment of bargaining agent, not to be objectionable so long as interest of community not suffering from it. Held further : Provisions about cooperation of workers, formation of trade unions and creation of labour leadership being salutory ones, same to advance collective good of public. [P. 207]S & U (Hi) industrial Relations Ordinance (XXIII of 1969)— -__S. 46 read with Constitution of Pakistan, 1973—Art. 203-D— Strikes and lock-out—Provisions regarding—Held : Right of lock-out and strike being steps in aid of settling industrial disputes, efforts to be made firstly for elimination of disputes and secondly for their adjudication in manner that possibility of these extreme steps by employer and employees be eliminated—Held further : Refusal to work or slowing down with object of obtaining just wages not to be interfered with and employer to be forced to give workers his due. [P. 207]^ T&V (i?) Islamic Law & Jurisprudence—

Contracts—Regulation of—Held : Wide jurisdiction having been conferred on Imam or State to regulate ownership, enterprise, industry industrial relations, trade, trade ethics, producer-consumer relation­ ship in relation to cost of things produced, occupation of houses re­ quired for accommodating shelterless and their rent, relationship be­ tween owner of land and tenant and that between employer and employee, contracting parties to be made subject to discipline in order to ensure public welfare and to subdue and eliminate mischief. [P. 193]N (v) Islamic Law & Jurisprudence—

Employer & employee—Relationship — State—Duty of — Held : Duty having been imposed on employer to look to comfort and well being of employee to treat him as his brother and not to allow him to work harder than his capacity, State, in case of failure of em­ ployer, to step in to give effect to Sharia requirements — Held further : Workers also not to be allowed to let industry standstill in order to impose their unreasonable will and demands. [P. 187]D (vi) Islamic Law & Jurisprudence—

Employer & employee—Relationship—Held : Both employer and employee to desist from committing wrong and to do full justice to their role—Employee not to be burdened with more work than his capacity while employer not to be burdened wage with increase or other demands beyond his capacity of meeting, [P. 188]E (vii) Islamic Law & Jurisprudence —

Employer & employee — Contract between — Held: Contract be­ tween employee and employee to be specific and unambiguous in respect of condition of employment. [P. 1 89]G Baihaqi Vol. VI, p. U ref. (viii) Islamic Law & Jurisprudence— —•—Freedom of association—Right of—Held : Freedom of associa­ tion being fundamental right, same to be recognized. [P. 197]P (ix) Islamic Law and Jurisprudence— ——Individuals — Needs of—Fulfilment of—Individual, society and state—Obligation of—Held : Individual to discharge his obligations by working for fulfilment of his needs including that of feeding, clothing and providing shelter to himself and his family—Fulfilment of such needs being also largely dependent upon dischaTgs of duty by society, individuals must be helped according to their capacity and ablility —Ultimately. State to help in fulfilment of common need of society including fulfilment of needs of individuals too as part of totality of individuals. [Pp. 192 & 193]/sT, L&M (x) Islamic Law & Jurisprudence—

Labour laws—Justification for—Held : There being no Sharia bar for State to determine terms and conditions of employment, person employing labour, if in knowledge of such terms and conditions, to be treated to have agreed to sams-Held further: Provisions of such laws having contractual significance, Muslims to be under incumbency to fulfil their pledges. [P 190] J (xi) Islamic Law & Jurisprudence— —— Obligation — Farz-e-ain and Farz-e-Kifaya — Definitions of. [P. ]C Arabic English Lexicon ref. (xii) Islamic Law & Jurisprudence— —Price—Control of-—Held : Traders to be (competently) forced to sell their stocks at prevailing value and to be (even) punished in case of violation of order. [P. 196]O (xiii) Islamic Law & Jurisprudence— -— Qisas— Meaning of—Held : Qisas being equalisation i.e. doing to some criminal what he did to another human being same not to exactly mean retaliation and vengeance, [P. 181]/4 Holy Quran 2 : 178-179rel. (xiv) Islamic Law & Jurisprudence—

Qwoy—Object of—Held: Qisas being based upon principle of prevention of crime (() oy panistiing criminal, (»') by its serving as admonition to others, (hi) by satisfying urge of victim or his heirs to see criminal being subjected to same treatment to which he subjected his own victim, same to be safety value against vengeance and future killings and in last analysis to be life saving device. [Pp. 181 & 18215 Holy Quran 5 : 32 & 2 : 178 ref. , (xv) Islamic Law & Jurisprudence—

State—Duty of—Held : Ultimate responsibility for satisfaction of basic needs of people to lie on State. [P. 186]C Holy Quran 59 : 7-8 ; 9 : 60 & 4 : 6 ref. (xt!) Islamic Law & Jurisprudence— ——Worker—Wsees of— Held : Wages of worker to be paid without delay. [P. 188]F (xvii) Islamic Law & Jurisprudence—

Worker—Duty towards—Held : Worker not to be made to bear more burden that his capacity. fP. 189]# Bnkhari (Urdu) Vol. Ill, p. 232 ; Mnwata (P. 192, 384-5) ; Bailaqi Vol. I. p 9 : Islam Ko Tqtisadi Nizam (P. 295) ; Islam by Khurshid Ahmad, po 182-4 ; Ela-us-Sunnah Vol. 16 ; P. 213 ; Badai-us-Sanai Vol. TV, p. 210 & Fatawa-e-Alamgiri, Vol. IV, p. 412 ref. (xviii) Constitution of Pakistan, 1973—

Art. 203-D — See : Industrial Relations Ordinance (XXIII of 1969)—S. 46 & S. 3. Mr. Iftikhar Hussain Chaudhry, Advocate for Federal Government with Mr Mushtaq AH, Central Labour Adviser, Ministry of Labour. Dates of hearing : 21-3 ; 19. 20, 23 & 24-4 & 10-9-1983. ORDER Aftab Hussain, C. J. —The labour problems have now assumed a very important aspect in the politico-social sphere. Although the nineteenth century was a century of abolition of slavery, but the industrial era brought with it new problems cf employer and employee relationship. Initially—there was no labour problem, as much people were employed in professions in which the owner or the head of trading institution was requested by persons interested in learning the trade to act under him as apprentices. Their object being to learn the trade, they intitially work­ ed without wages. After sometime some small allowance was paid to them which was increased in the ratio of utility of the apprentices. The wages were determined generally by the law of supply and demand and were generally sufficient to make two ends meet. 2. Before the Industrial era, very few persons were employed, but after the Industrial revolution and mechanization of industry, a large number ol worker^ bad to be employed. The employer wau always moti­ vated by the consideration that he should recruit labour as cheep as possible and force them to work as many hours a day as possible, without caring a bit whether the economic compulsion would be harmful or detrimental to their health or well-being. Thus started a period of near slavery and forced labour, because the labourer had to yield to the demand of the employer. He could only resist at the risk of losing the employment. The wages were so low that they could hardly relieve starvation at the brink of which he and his family stood. The wish for prosperity was a desire for the unattainable and a cry for the moon, 3. Even children and women had to work long hours for small wages without any other benefit. The condition of the industrial worker was not better than that of a slave or serf. 4. With the era of mass production, which was the result of setting up of tools Industries, the need for ordinary labour dimini»hed and skilled workers were more in demand. Some Industries turned out skill workers too. but they were as bereft of any right as the ordinary workers. The result was that the enterpreneur earned considerable profits as a result of exploitation of the working class. This was one of the main causes of the wealth being concentrated in the hands of a few persons. 5. Initially Socialist and Communist theories were a reaction against this form of exploitation which came to be known as Capitalism and the only object of which has been acquisition in terms of money. This is the exact opposite of the idea of earning a livelihood which dominated all precapitalistic systems, particularly the feudal handicrafts economy (Islamic Economics by M.A. Mannan pp. 36, 37), Capitalism had come to signify a religion of money or Dollar Dictatorship in which the role of labour was little above the role of slaves. The industrial workers had neither the will nor the strength to challenge this Dictatorship and to wrest from it even the subsistence wages. The workers were then awakened to the need of cooperation among themselves and of trade unionism, in order that they may be able to put up joint demands for sharing the enefits of the Enter­ prise, at least to the extent of extracting from the enterpreneur, just wages, which may be suffic ent for the up keep of their families. These demands were later extended to demands for other benefits as those of housing, education, medical facilities and Bonus etc. 6. Some of the objectives of the cooperative efforts were raising of the dignity and honour of the workers as human beings, the acquisition of equal wages and equal rights for men and women, and distribution of the benefits of wealth and prosperity among all the parties including workers. As expected, the entrepreneur was the most unwilling party to concede even reasonable demands of the workers. He had a marked superiority over them since the supply of labour had never been a problem to him and he had always been in a position to dictate terms to the recruits. This only aggravated class conflict and widened the gulf between the rich and the poor. For this reason the state had to step in with the object of not only bettering the conditions of the workers but also creating jharmony between the demands of the two contending parties in the interest of industrial and economic development of the country. 1, The International Labour Organization has done a yeomen's job in this respect. This Organization was created after World War 1, by the Peace Settlement of 1919 as an affiliated agency of the League of Nations with the object to facilitate the improvement of conditions of labour and living standards throughout the world. 8. After the United Nations was established during the World War II, the International Labour Organization became the first of the specialized agencies to be affiliated with it, in 1946. The functions of the ILO and its working may be gathered from the following extracts ;— "The functions of the ILO include the development and promo­ tion of standards for national labour legislation and practice to protect and improve conditions and living. It provides technical assistance in social policy and administration and in man­ power training and utilization and fosters cooperative organizations and rural industries. Labour statistics are complied, and research is conducted in the social problems of international competition, unemployment and under employment, labour and industrial relations economic development, and technological •hange (including automation). The ILO is also concerned with the protection of international migrants, the safeguarding of trade-union rights and other human rights and the attempt to associate labour with economic and social decisions. It also encourages a continuing exchange of ideas among representatives of the world's governments, workers and employers-together with the ILO's own staff. In its first decade, the ILO was concerned primarily with legislative and research efforts, with the definition and promotion of proper minimum standards of labour legislation for adoption by member states and with arranging for colloboration among workers, employers, government delegates, and the office professional staff. During the 1930s the ILO sought ways to combat world wide unemployment and economic depression. Its proposals of extensive international public works, were, how­ ever, too far ahead of their time to influence national decision makers. After World War II the break up of European Colonial empires and the claims of the developing nations brought forth new tasks for the ILO ; its memberships was no longer predomi­ nantly that of European, economically developed States but increasingly that of the underdeveloped states of the third world. The ILO's major emphasis shifted therefore to the area of human rights and to technical assistance and similar work in the interest of the countries of Asia, Africa, Latin American and Europe itself." 9. It would appear from Article 23 of the Charter of the League of Nations that ILO was established inter alia with the object to secure the be­ tterment of conditions of labours. Clause («) of Article 23 is as follows:— "Subject to and in accordance with the provisions of inter­ national conventions existing or hereafter to be agreed upon, the Members of the League .-— (a) will endeavour to secure and maintain fair and human con­ ditions of labour for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations extend, a ; nd for that purpose will establish and maintain the necessary international organi­ zation''. 10. After the Second World War, a Conference was held in Philadelphia (USA) in 1944 and the followiug principles were embodied in the Declaration known as Declaration of Philadelphia :— (1) Labour is net a commodity, (2) Freedom of expression and association are essential to sustained progress. (3) Poverty anywhere constitutes a danger to properiety everywhere. (4) All human brings, irresoective of race, creed or sex have the right to pursue b.Hh thier material well bei 'g und their spiritual deve­ lopment in conditions of freedom and dignity of economic security and equal opportunity. 11. One of th? most important functions of this Organisation is to adopt conventions and mike recommendation^, in its annual conferences, The member states ratify the conventions and p .it them into practice. Recommendations provide guidance on policy, legislation and practice. Between 1919 and 1975, 143 Conventions and 151 Recommendations were adopted by the number .sutes Some of these convictions relate to freedom of association, labour administration, indu>tria! relations, working condi­ tions, social sec rity (mending sickness and old aa;e benefits), occupa­ tional safety and health. When a Government ratifies a convention, it must report to the ILO. Compliance with ratified Convention is super­ vised by a committee of independent experts drawn from all parts of the World and by u tripartite committee of she International Labour Con­ ference. There is spccia; procedure to investigate complaints of infringe­ ments of trade union nghis. 12. Up to the end oi uve yea;, 1974 one hundred and thirty seveo States were enroll,-^ as members of !LO The first section of ILO was held in 1919 and the 59ih Session in 19 7 4. Pakistan became its member on 31 st October, 194" Pakistan has so far ratified thirty Conventions. The last Convention No. 118 was ratified on 27-3-969.' (See History of Trade Unionism and Role of ILO, by Mian Nisar Ahmad Saleem). 13. The list of Conventions ratified by the British Government from 1921 to 13-8-.947 and thereafter by Pakistan is given below : — s. No. No of Convention Title D^te of Ratification Date of Denunciation 1 2 3 4 5 1 No. 1 Hours of Work (Industry) J4-7-1921 The Convetion Can be denounced at any time as no specific date has been given in the provision of the Convention. 2. No. 4 Night Work (Women) 14-7-192! -do- Convention, 1919 3. No. 6 Night Work of Young 14-7-1921 -do- Persons (Industry) Con­ vention. 4. No. J! Right oi Association 11-5-1923 -do- (Agriculture) Convention, 1921 5. No. 14 Weekly Rest (Industry) 11-5-1923 -do- Convention, i92! 6. No. 15 Minimum Age (Trimmers '20-11-1922 & Suokers^ Convention. 192! ?. No. Ifc Medical Examination of 20-11-1922 -doyoung persons 'Sea) Convention 19 iL 8. No, J.x Wcrkmeii"> Compensation. 30-9-1927 ~do- (Oc :up.iiioaa! Diseases) C'i-vent.or,, !92< 9, No. )9 hquaiity of Treatment 30-9-1927 -do- (Acc;dent Compensation) Convention, 1925 10. No. 2i Inspection of Emigrants 14-1-1928 -do- Convcntion, 1926 H. \o. 2: Seamen's Articles of 31-10-1932 -do- Agreement Convention, 12. No. 27 Marking of Weight 7-9-1931 9-3-1992 (Packages Transported by Vessels) Convention, 1929 13. No. 2' 3 I creed Labour Conven- 23-12-1957 3-5-1992 nor>. !930 14. No. 32 Protection against Acci- 10-2-1947 30-10-1984 dcnt> (Dockers) Convent>ot> ('Revised) !932 i.S. \o, a) : \ lg ht Work (Women) 23-11-1935 sjdcc we have rati- Convention {Revised) 1934 fied the revised Convention No. 89 it ipso jure involves the im­ mediate denunciation of this Convention. I 2 3 4 5 16. No. 45 Underground Work 25-3-1938 30-5- 198? ( Women 1 Convention 1935 17. No. 59 Minimum Age ; (Industry) 26-5-1955 21-2- 1991 Convention (Revised) 193? 18. No. 80 Final Articles Revision 25,3-1948 This convention has Convention 1946 been revised by Convention No. 116. 19. No. 81 Labour InspecUon Con- 10-10-1953 7-4-1990 vention. 1947 20. No. 87 Freedom of Association 14-2-1951 4-7-1990 and Protection of the Right to Organise, Con­ vention, 1948 21. No. 89 Night Work (Women) 14-2-1951 27-2-1991 Convention (Revised) 1948. 22. No. 90 Night work of Young 14-2-1951 12-6-1991 Persons (Industry) Con­ vention (Revised) 1948. 23. No. 96 Free-Charging Employ- 26-5-1952 18-7-1991 ment Agencies Conven­tion (Revised) 1949. 24. No. 98 Right to Organise and 26-5-1952 18-7-1991 Collective Bargaining Convention, 1949. 25. No- 105 Abolition of Forced La- 15-2-1960 17-1-1989 bour Conviction, 1957, 26. No. 106 Weekly Rest (Commerce 15-2-1960 17-1-1989 and Offices), Convention. 1957. 27. No. 107 Indigenous and Tribal 15-2-1960 2-6-1980 Populations Convention, 1957. 28. No. Ill Discrimination (Employ- 24-1-1961 15-6-1990 ment and occupation) Convention, 1958. 29. No. 116 Final Articles Revision 17-11-1967 Convention, 1961. 30. No. 118 Equality of Treatment 27-3-1969 25-4-1984 (Social Security) Con­ vention, 1962. 14. Some recommendations of the ILO were also accepted by the Ctovernment of Pakistan. Their list is as follows :— SI. Number of No. Recommendation Brief Description of Recommendation Date of acceptance by Pakistan Remarks 1. No. 88 Vocational Training 20-10-1953 (Adults) Recommenda­ tion, 1950. Accepted with the exception of its para­ graph 5 (4)(b) 17 : 19 : 20 : 27 :28 : 29 : 30 : 31 : 32 : 33 & 34. 2. No. 91 Collective Agreements Recommendation, 1951 3. No. 92 Voluntary Conciliation and Arbitration Re­ commendation, 195). 4. No. 94 Cooperation at the level of the under­ taking Recommenda­tion, 1952. 5. No. 96 Minimum Age (Coal Mines) Recommenda­tion, 1953. 6. No. 97 Protection of Workers Health Recommenda­tion, 1953. 7. No. 98 Holidays with pay Recommendation, 1954. 20-5-1957 Accepted with the ex­ ception of it paragraph, 2 (1) ; 3 (1> (a) 0), <O & (d) : 3 (3) : 4 (1) (a) (b) & (c) : S:6& 13. Besides this, it has been specified by the Govern­ ment of Pakistan, that the accepted provision of the recommendation in their application would be limited the places of employment covered by the existing national laws and re­gulations only. 16-9-1959 Accepted with the ex­ ception of paragraph 14 of the recommendation. The Government of 8. No. 102 Welfare Facilities Re­ commendation., Pakistan have further specified that the pro­vision of the recom­ mendation in their case, would applicable to workers, covered by the legislation on factories. Shops & commercial-establishments. 20-7-1959 Accepted with the ex­ ception of it paragraph 10. !2. 29, 30. 3l, 32, 33&34. 9. No. 103 Weekly Resl (Com- 29-12-1959 Accepted with the merce & Officers) Reexception of Its paracommendation. 1957, graphs, 1. 2. 4, (j) and 7. 10. No. 105 11. No. I 12, Sbips Medicine Chesss 27-2-1960 Recommendation. 1958. Medical Advise at Sen '17-2-19<>u Recommendation. 1958. Seafarer s Engagement 27-2-1960 (Foreign Vessels;. Re­ commendation, 1958. Social Conditions and Safety (Seafarers), Re­ commendation, 1958. 27-2-1960 14. No. Ill Discrimination) Em- 31-12-1960 Accepted with the exployment and Occupaceptioa of its paration Recommendation, giaph 8. 1958. 15. No. 113 Consultation u»dust- 24-3-1962 rial and National Level sV Recommendation. 1960. 16. No. 117 Vocational " Recommem; nit 7-9-1967 17. No. 129 Corns, , iiiiivriUoa wamn 17-4-1970 the undertaking Rev,-ojrjnv:-.Hl;V.!r-r!. 1967. 18. No. 130 Examination of Grie- 17-4-1970 vances Recommenda­ tion, 1967. (See History of Trade Unionism and Role of ILO by Mian Nisar Ahmad Saleem). 15. Pakistan therefore, i» not working in isolation and labour laws drawn by it have international support and backing. In fact the Inter­ national Convention- hive been provided with sanction by their incorpora­ tion in the laws of Pakistan . 16. Islam is a -Deen" which provides guidance for the Muslims in all fields including the economic field. The contribution of Holy Quran, as well as, Ahadis literature, in this direction is marvellous and astound­ ing Islam in the first rdi^-sri to propagate in this class-dominated and class-split world the cone,-pt of equ.i! tv between man and man and to proclaim the creation ot a society, in wh-.ch if any preference is given, it is given to those who are more pious and God Searing. In this respect the address of the Holy Prophet in Hajjntu! wada (f-^^i ») stands as a model for creation of a classless society m the world which must be free of exploitation or any of mischief. The Prophet said : "O People Beware Your Su^tainer (Vj> i-> one and your father is one (Adam). An Arab is not superior to a non-Arab nor is a non-Arab superior to an Arab nor (is there any superiority) of a red on black or a black over the red except by virtue of (the degree) of piety. Have I transmitted this to you " People said it is transmitted : The Prophet then a>ked "what is the day to d. '.'". They said it is Yom-i-liaram (•';- ^) /.c' Inviolable da. He then asked what is the month '.' They replied ('Ij- .;-)• He said Allah has rendered inviolable amongst you your bljod. your property and your dignity and honour, like the inviolability of this day, this month and this city. Musand Imem Ahmad Volume page 37 Seerat-i-Mustafa by Allama Abdul Mustafa Al Azhari pages 415-4i6. SeeratuI Nabi by Allama Shibli Vol. 2 page 155). The Prophet said : Each Muslim is the brother ot another Muslim and all Muslims are brothers among themselves. (Al Mustadrak by Hakim Vol. 1 page 93, and also see Majma ul Zawaid Vol.8 page 84 on the authority of Tahavi in which it is stated that there is no superio­rity of a white over a black man). The Prophet said "Feed your bondsmen with what you eat and clothe them with what you clothe yourseli" (Iboe'Saad. Seerat ui Nabi by Shibli Moamani Vol. 2 page 15f s 11. It was clarified that all men are equal and nobody has preference over another except on the basis of piety. The Prophet not only con­ demned blood feud but proclaimed them to be at an end. Interest (Riba) which is another form of exploitation of the poor or needy by the rich was eliminated from the Muslim Society. The underlying idea in the Ahadis relating to contract is the elimination of fraud, misrepresentation, undue benefit, undue influence and unjust enrichment. 18. The Holy Prophet applied al! possible means to improve the lot of slaves who were considered in those diys to be an indispensable part of the world economv. He directed that they should be given the same food as the master himself eats, should be clothed with the same clothes which he wears, should be treated well and should not be made to work harder than can be done and endured by the master himself. Politeness in dealing was also directed. The Hadis is as follows : They (your bondsmen or servants) are your brothers. God has assigned them to your control. So whoever has his brother under his control shall feed him from what he himself partakes and cloth him with what he himself wears and shall not impose on him a task harder than him (he can himself perform). If you impose sub work on him, help him also in doing it. [Bukhari (Urdu trns.) Vol. 1 page 98] 19. The Hadis points out that the relations between an owner and his slave and between an employer and an employee are fraternal and a bondsman and an employee should be treated to be equal to the master or the empjoyer. The two are not master and servant or master and slave but they are brothers. It also follows that the employee or bondsman or worker is entitled to as good food and clothes as is eaten or donned by the employer and consequently the wages payable to a worker should be such as may enable him to live a decent life. 20. In another Hadis related by Abu Hurairah it is said that the Prophet said :— "When a servant belonging to any of you prepares your food and brings it to you, you should make him sit with you at dinner and if you cannot make him sit with you, you should give him same food for he has worked hard and borne heat of cooking" (Bokhari, Abdu Daud, Tirmizi, quoted in Economic Doctrines of Islam Vol. 2 page 267). 21. This is a direction not only to reward the worker but also to honour him. The use of the words "make him sit with you at dinner" is very significant and meaningful. These words show the worker's equality and fraternity with the owner, 22. The general principle laid down by Islam is that the believers are brethren (Q, 49 : 10, Q. 9 : 11) and there should be no disunity amongst them (Q. 3. 103). According to Abu Musa the Prophet said!" Believers are in relation to another as (part of) a body, one part of which streng­ thens the other (Bokbsri, Economic Doctrines of Islam Ibid page 262). 23. This is a general principle applicable to all but the holy Prophet gave specific directions to regulate by the same kinship or fraternity the relations between the master and the slave or the master and the servant. (Bokharl Vol. g page 15, Islamic Ecoacmics edited by Khurshid Ahmad page 181, article on Objective of the Islamic Economies Order by Mohammad Umar (Cbapra). 24. The Holy Prophet (PBUH) said : "Whoever humiliates or despises a Muslim, male or female for his poverty or paucity of resources, will be disgraced by God on the day of Judgment. (Mascad latsin Ali Al Rida Bemit 1966 page-674, quoted from Chapra's Article ibid). 25. The Principle of equal treatment before the Saw emerges most forcefully from the following Hadis : "Communities before you strayed because when the high com­ mitted theft they were set free, but when the low committed theft the law was enforced on them. By God, ev«n if Fatima, daughter of Muhammad committed theft, Muhammad would certainly cut her hand : (Tirmizi volume 1 (Urdu translation) page 646 printed Mohammad Saeed and sons, Karachi), The Hadis incorporates not only principle of justice but also of non-discriminatioo between man and man. 26. In order to get rid of the curse of slavery, the making of free men slaves was condemned In most un-ambiguous manner ; and restrictions were put on their sales. 27. The Prophet prohibited the sales of free man. He said : Allah says I will be opposed to three persons on the Day of Judgment... , secondly a person who sells a free man " Sahee Bokhari, Kitab- ul-Ijara , Ch. 1408 Hadis No, 2114). 28. The Quran provides for availing Zakat for the liberation of slaves (Q. 9 : 60). It aiso provides for obligatory manumission in some cases (e.g. Q. 58 : 3 and Q. 4 : 92). Thus liberation of a slave is a duty. 29. It is well known that Hazrat Umar decreed that if a slave girl gave birth to a child from the owner she could not be sold or inherited and after the death of owner, she becomes free. 30. There is a tradition that if a slave is owned by two persons one of whom frees him, he cannot be made to act as a slave and will be freed on payment of amount assessed as the pries of the other half, which shall have to be accepted by the other co-owner. If he is not possessed of means be shall be allowed to work and earn money to discharge the debt. Bofehari, Ch. 1574 Hadlth No. 2327). 31. Hazrat Umsr decreed that no A,rab &an be made 3 slave. 32. It is on account of such teachings that Hazrat Bilal, although a freed slave is highly respected among the Muslims and instances are not lacking when onetime slaves became rulers of big territories in the Islamic world. 33. Zaid was a slave of the Holy Prophet, but he was treated like a son and when his relatives approached the Holy Prophet with a request for grant of freedom to him, the Holy Prophet had no objection, but Zaid refused to part with him and preferred the service of the Holy Prophet over association with his immediate and close relatives. 34. Hazrat Umar once decided a case of two slaves, who had stolen a camel belonging to the complainant. He first passed order of cutting of their hands, but then reviewed it, after inquiry from the slaves about the reasons which compelled them to commit the crime. They explained that treatment of their master was harsh and he did not feed them well. Hazrat Umar, thereupon called the master and directed him to pay double compensation for the loss of the camel to the owner thereof, llamul Mawaqqieem by Ibn-e-Qayyim. Volume III page 11, printed Beirut), 35. Islam is a religion which considers slaves to be human beings and not chattels. It , rovides for them equal reward for their virtues, but while providing for equal and lawful rights, it reduces their liability to half. A free adulterer or adulteress if un-married, is punishable with 100 stripes for adultery but a slave is punishable with fifty stripes only. According to Ahadith the sentence of stoning to death is given for the ott'ence of adultery if committed by a married person, whereas a slave whether married or unmarried male or female, can be punished ith only 50 stripes (Q. 4 : 25). 36. It has been related by Abu Huraira that the Holy Prophet decided that the Hadd of a slave is half of that of a free person if it is ditisiblc like the Hadd of offence of adultery if committed by an unmarried free person or Hadd for Qazf and drinking. (Jamul Fawaid by Muhammad Suleman Vol. 1, page 495, Hadith No. 66). 37. The Holy Prophet is said to have declared that Khilafat is for a person from amongst the Quraish, but the authenticity of this is disputed by some of Ulema, while others found it applicable upto a particular age. But it is not disputed that the Holy Prophet said that you must obey your Imam, even he be a disfigured slave. 38. Islam encourages "mukatabat" i.e. contract between slave and the master for purchase of the former's liberty by earning wages. In the Hadith referred to above in which a co-owner manumitted bis share in a slave, it was directed by the Holy Prophet that the value of slave for the other share shall be assessed by the just people and that amount will be paid to their master and if it be not possible for him to pay it, the slave ill be asked to earn wages and then pay the amount. (Ahadith No. 2326 and 2327, page 574, Saheeh Bukhari, (Urdu translation) Vol. III). 39. Abu Masud Ansari reports that one day he was beating his slave when he heard a voice from behind "O Abu Masud ! You should know that God has greater power over you". Abu Masucl said "When I looked Not legible back there was the Holy Prophet. I at once said : "O Prophet of God. 1 free this slave to seek the pleasure of God". The Holy Prophet said : "If you had not done this, fire of Hell would have burnt you", Muwata Imam Malik, Vol. II page 385). 40. Umar used to go to the suburbs of Madina and whenever he found any person doing harder work than he couid bear he helped him to lighten his burden. He was very strict in protecting the rights of labour. He himself very strictly observed all the regulations concerning labour and forced other to comply with them. When he went to Jerusalem to sign peace Covenant with the Christians, he and his slave rode by turns on one camel. When they entered the gates of the city, it was the turn of the slave to ride and Umar was walking on foot. 41. The only instances in which persons were made slaves during the period of Holy Prophet or his rightful Caliphs are of those persons who were arrested during wars. This was one of the modes prevalent in the world for dealing with the prisoners of war. In a way this system proved more beneficial for prisoners of war captured in Jihad. The alternative modes in the world were either to liquidate the prisoners of war completely or to keep them in concentration camps and make them work collectively and suffer all types of harshness, misery and privation including starvation. Those who were kept in such camps by the Nazis and the Japanese during World War-II can better realise the fate of such prisoners fourteen Centuries ago when complet; savagery was the rule) But Islam did not approve of either elimination and k Hing of prisoners of war or any other method of making their lives miserable. It approved of the distribution of the prisoners among the members of the Ummah who were bound to treat them as brothers and members of the household. 42. An important principle approved by Islam is of " c-JUJl (Ikram-e-Insaniyat) i.e. dignity and worth of the human person about which the Holy Quran is very explicit. It says : "Verily we have honoured the children of Adam. We carried them on the land and the sea and have made provision of good things for them, and have preferred them above many of those whom we created with a marked preferment. (Q. 17 : 70). "Surely We created man of the best stature. Then We reduced him to the lowest of the low save those who believe and do good works, and theirs is a reward unfailing. (Q, 95 : 4-6). 43. Man was honoured by Allah from the time of his creation. This is evident from the protest of Ibhs against the divine order to prostrate before him. The honour conferred upon man made Iblis a rebel. He said ! 47. The word ' fjf ' (Karrama) or its derivatives used in these verses mean to honour, to revere, to venerate and treat with deference. The word 'fjf^ means to be aoble, high minded, noble-hearted, magnanimous, gene­ rous, liberal, magnificent, precious, 48. The word (fjZh) (alkaram) means a quality which is an anti­ thesis of meanness which was considered by the Arabs to be the worst trait. Karam was therefore held to be the best quality in man, rather the word connotes ail that is most virtuous or a!! that is best. The reference is to the superior qualities in him. 49. The declaration (f^'-t kjf M)j) "Verily we have honoured the children of Adam". (Q. I/: 70) means that mankind is not only honoured by Allah and is vested with the above qualities but he is also directed to be honoured by his fellow beings. Veneration for man is o0e of the basic human rights recognised by the Qur'an and if anyone is more honoured (Q. 49 : 13) it is on account of his obedience to the laws of Allah. 50. This concept abolishes all distinction based on authority whether secular or pertaining to Church, or authoritarianism, capitalism, colonia­ lism, colour or wealth, prosperity or down-troddenness. Man is honoured because of the common quality of humanity. 51. The Holy Qur'an revolutionised the standards of superiority and honour and supplanted them by the uniform standards of dignity and equality of the entire mankind rather than of the quantitatively few. (See Lagbat ul Qnr'an Vol. 3, page 1427 on the word 'Karrama'). 52. In this respect Qur'an draws a distinction between man and other animals, While killing an animal for food is legal the killing of a human being is said to resemble the killing of the entire mankind and saving one life is like saving the iife of the entire mankind. (Q. 5 : 32). 53. The simile of 'entire mankind' emphasises not only the horror of the deed but also the uniform standard of dignity of and honour and respect for every human being. The killing of a poor, down-trodden, helpless man-even if he be a slave or a labourer-has the same consequences as the killing of an emperor, chief or the wealthiest person. ur'an prohibited infanticide and killing of daughters obviously on this principle. (Q. 17: 32, Q. 6 : 141, Q. 81 : 8). 54. Qur'an also declares that there is life in qisas (i.e. equal treatment).! Qisas does not exactly mean retaliation and vengeance. It means equalisa-L tion, that is doing to the criminal what he did to another human being.! If someone kills a human being he is liable to be executed unless the heirs} of the deceased pardon him (Q. 2 : 178-179). 55. These verses do not promote or project any blessings of killing another person. iFar from it, they carry to its logical conclusion the principle: v "Whosoever killeth a human being for other than slaughter or corruption in the earth, it shall be as if he had killed all mankind and whoever saveth the life of one, it shall be as if he had saved the life of all mankind" (Q. 5 : 32). Qisas is based upon the principle of prevention of crime (1) by punishing the criminal, (2) by its serving as an admonition to others (3) by satisfying the urge of the victim or his heirs to see the B criminal being subjected to the same treatment to which he subjected his own victim, and thus stopping future blood feuds. This is a safety valve against vengeance and future killings and is in the last analysis a life saving dsvice. The Qur'an provides for saving the life even of a criminal (See Q. 2 : 178) by allowing the heirs of the deceased to pardon him. Thus in its ultimate analysis there is life in qisas because it helps in saving other lives. Those who view qisas as somsthing cruel have fallen into the fallacy of ignoring the psychological impact cf a crime upon the victim or other persons thereby affected. Islam takes note of human psychology in this respect but side by side initiates Muslims in the blessings of pardon. 56. This point can better be appreciated by a reference to the pre- Islamic concept of Qisas. Contrary to the law laid down by Islam about individual liability that only the person committing the crime is liable for his deed, in jahiliya (era of ignorance) the liability for killing of a person of another tribe was collective and it resulted either in war involv­ ing the two tribes or in the death of one or several persons of the other tribe — not necessarily of the actual criminal — if that tribe succumbed to the demand of the tribe to which the deceased belonged. Blood money {Diyat) could also be paid but the rule was seldom followed on account of the contempt which it aroused, if practised. 57. The Qur'an abolished the collective responsibility in Qisas and decreed that it could be wreaked only against the person who slew or injured the victim. It also provided for the alternative of pardon. It revolutionised the mental attitude towards Diyat (blood compensation). The result was that the stigma and contempt attached to its cceptance ceased. The tribal wars also came to an end. This change in the be­ haviour of tribal people is sufficient commentary on the principle that there is life in Qisas. 58. The abolition of qisas would provide immunity to monstrous designs of other criminals, thus endangering the security and peace of peaceful citizens. If in the last analysis the formulation of question be whether wisdom lies in curbing criminality to the possible extent by the execution of those who committed the crime of murder, or in aggravating criminality by providing immunity of life to the killers, the answer would undoubtedly be in favour of Qisas which Islam has tampered with mercy for the repentant criminal. The preponderating idea is that of dignity of man and one who interferes with that dignity must be dealt with accord­ ingly until he shows repentence to the satisfaction of the victim or his family. 59. Labour has never been considered by Islam to be anything un­ dignified. All lawful means of earning livelihood are honourable e. g. grazing of animals, self cultivation of land, working in the fields, working in industries on wages. The Holy Prophet said that there is no messenger of Allah who did not graze goats. People asked "you also grazed goats?" He said "Yes, I used to graze goats of the Meccans for a few Qeeraat" [(S»hih Bukhari (Kitabul Ijara, Ch. 1400, Hadith No. 2107)]. It is well known that in Medina after Hijra the companions of the Holy Prophet including his rightful Caliphs had been earning their livelihood by labour. They worked as field or garden labourers. They carried and pursued other callings. Tht Prophet discouraged begging by able bodied persons and exhorted them to work and earn their livelihood. 60. There is a well known Hadith that a companion asked iht Holy Prophet for some charity. He enquired from him if he had anythngewith him. He said that he had a piece of cloth and a cup for drinking water. The Holy Prophet asked him to bring these things. When he brought them, the Prophet auctioned them for two dirhams and gave them to him with the direction that one dirham was for his family and from the other he should purchase an axe. When he brought the axe the Holy Prophet fixed a handle to it and asked him to go out, cut wood, sell it and return after a fortnight. When he returned after the fixed time, he said that he had ten dirhams with him, which he had saved after purchase of the clothes and food required by him. The Holy Prophet said that this is better for you and that if you begged you would have been shame-faced and disgraced on the Day of Judgment (Abu Daud), 61. From this instance it is proved that only beggary is shameful and undignified and not honest labour whatever be its nature. On the other hand work inculcates not only the love of labour but also gives to the labourer new dignity and stature. 62. The Holy Qur'an and the Sunnah have emphasised the impor­ tance of labour in order to provide incentive for work. Reference may be made to the following verses of the Holy Qur'an and Ahadith :— Q. 53 : 39, "There is nothing for man but what he strives for." » - U Q. 4 : 32. "For men is the benefit of what they earn. And for women is the benefit of what they earn" Q. 41 : 10. "There is a guaranteed share for those who seek and endeavour". Q. 8 : 53. "This is because God never changes a favour which He has conferred upon a people until they change their own condition''. The Prophet said: (1) No one has earned a better living than the one who has earned with his own hands (labour). The Prophet David earned (his living) with his own hands. (Bnkbiri, Vol. I, I page 461, Hadith No. 1912-13). (2) If one of you should take a rope and bring a bundle of firewood on his back and sell it (to earn bis living) it would be better for him than begging from others". Ibid, page 461, Hadith No. 1914-15)- (3) "Beg not anything from the people (Abu Dawood)". (4) "The upper hand is better than the hand which is below Bokhari and Nasal)". (5) "The best earning is the earning of the labour with one's hands provided he (worker) performs his duty honestly (Ma j maul Zawaiad Vol. 2, p. 98)" (6) "A man has not earned better income than that which is from his own labour (Ibne Majah and Nasai)" . (7) "To earn an honest living is a duty next to the main obligation of offering prayer (Mishkat ul-Masabib, Kitab-ul-Buyu)". 63, The Prophet sought refuge from poverty and scarcity and equated the same with ignominy. The Qur'an directed people to earn. The Prophet prohibited beggary which is degrading and inculcated in the Muslims the blessings of labour. From these premises as said by Dr. Muhammad Omar Cbapra "one may infer that one of the conomic goals of a Muslim society should be to create such an economic enviorament that those who are willing to and looking for work are able to fiad gainful employment in accordance with thsir abilities. If this is not accomplished then Muslim society cannot succeed even in its spiritual aims, because these unemployed would be subjected to a life of extreme hardship unless they depend on the dole, or resort to begging or immoral practices, all of which, particularly the last two, would be repugnant to the spirit of Islam. (See 'Islam edited by Khurshid Ahmad, pp. 175, 176). 64, It was on account of such teachings that notwithstanding the establishment of Muwakhat ( oU.i>r ) or brotherhood among the early Mohajireen and Ansar of Midina, the former preferred to work and earn their livelihood. An illuminating tradition to this effect is from Abdul Rehman bin Auf. He said: "When we came to Medina, the Prophet created Muwakhat or brotherhood between me and Saad bin Rabee. Saad was the richest among the Ansar and wanted to give me half of his wealth and one of his two wives (in marriage) him to direct me to a trade centre. He told me of Qanuqah Bazar. I went there next morn­ ing and bought some curd and butter oil (for sale) and then I went there every day (to carry on this business)" (Bufchari, Vol. I. page 248, Hadith No. 961-2). In another tradition it is reported that once the Ansar asked the Holy Prophet to divide their date trees between them and the Muhajireen, the Holy Prophet did not allow this. But when the Ansar asked the Muhajireen to work in their gardens and share the produce with them, they readily accepted the offer. (Bukhari, Vol. I, page 519, Haditb No. 2145). 65. The Companions not only worked for earning their livelihood but also for contributing to charity. It is related by Saeed bin Yabya bin Saeed on the authority of Shaqiq on tbe authority of Abu Masud Ansari that when the Prophet ordered use t® give in chanty (rf^i) one of us would go to the market, carry loads there, acquire one rnudd (measure) of grain (and then give in charity). Some of them now own hundred of thousands (in money), Bukhari, Kitab-ul-Ijara. Ch. 1411, No. 2117). 66. During the regin of Hazrat Umar, a young man with strong physique entered the mosque and asked if any one would assist him in Jihad '(fighting in the name of Allah), Hazrat Umar called him and hold­ ing his hand, asked the people if there was any one who would employ him on his land. An Ansari agreed to employ him. Hazrat Umar enquired about the wages he would get and then asked him to go with that Ansari. After a few months, when Hazrat Umar came to know that the man was doing very well, he asked the Ansari to bring him with the money he bad earned. The man was brought before Hazrat Umar alongwith his purse full of dlfhams. Hazrat Umar tfaes asked him to take the purse and either go for Jihad or to his home (Kasz-al-Uiaaia Vol. V, P. 159), 67. It can be inferred from this that primarily it is the duty of each Muslim to earn his liveihood and to be aa active member of the Ummah. He should strive to ears not only for himself but also for spending in Jihad&nd for charitable purposes, 68. The duty of looking after the poor asd destitute neighbour, rela tions and members of the Ummah then rests upon all others who are rich or prosperous and even the less fortunate should work not only for feeding themselves and their families but also for alleviating the misery of others. In every community there may be persons who are not able to work or earn their livelihood. There may be others who despite striving for it are not able to earn enough to make two ends meet. Such are entitled to financial assistance from Zakat and Sadaqah (Q. 9 : 60). They are also entitled to be helped by those who can afford to assist them. The Prophet said :— (! O son of Man : That thou give with your own hands the super­ abundance (of thy wealth) is better for thee ; and that thou with­ hold it is bad for thee, thou ought not to blame for a sufficient subsistence : and begin with him who is of Kin (to them) (From Abu Umarah, Muslim, Tirmizi, Sayings of Muhammad by Abul Fazal No, 96). And said : "Hone deserves to be envied except two men, (1) he whom God has given wisdom and who decides according to the same, and teaches it to others, and (2) the man whom God hath given wealth and he spends it usefully (by Ibne Masud, Bukhari, Muslim, Sayings of Prophet, No. 430). 69. Now Islam is a way of life with checks and balances. The respon­ sibility to help others is no doubt primarily ethical in character but what is merely ethical today may be enforced tomorrow through law. It realizes the spirit of enterprise in man sad wonders be can perform by the use of it. The Dten allows a Muslim to earn what he likes from among the good the earth by use of al! lawful qieftqs. There is no or limit or ceiling on such earning. But it prevents him from hoarding it, rather it exhorts him to spend and not to let money lie idle. In Islam avarice, stinginess, parsimony and niggardliness are disapproved. But then Islam also stops a man from being a spendthrift He has to choose the middle course. There are two ways in which money can be spent with­ out a person incurring the charge of niggardliness or extravagance. Either the surplus money may be further invested to increase production and the national wealth or it may be spent on charitable purposes for national and individual welfare. Charity may be for the amelioration of individual e.g. member of the family, neighbour or others, or it be for ameliorating the lot of groups. In either case it is highly approved. Those who consider JJ'- and fjj to have a right in their property are considered to be highly praise-worthy Muslims. 70. It is stated in the Quran that such persons (fjj Jj' 1 -) '•£• those in need and in a state of deprivation) are entitled to a fixed share in the property of others but those who treat them to be entitled to share (with­ out Limit) are certainly more preferred. For this reason the Prophet said that in your property there are other rights too apart from the liability to pay zakat. The Holy Quran says : (O Prophet) people ask you : what should they spend and you say (in answer) "(>)" (all that is surplus) (Q. 2 : 219). 71. This is the basis on which rest the traditions entitling a person to have food and shelter for three days in any place which he visits. The liability to feed and accommodate him is that of the person living there. There are traditions that a guest can obtain satisfaction of this right even by force. 72. Hazrat Umar awarded Diyat when a person died of thirst because the people of the locality refused to give him water. He expressed his intention to award Diyat if a person knowingly and voluntarily fails to feed a starving person who dies as a consequence of starvation, 73. It is not therefore the sole responsibility of the&aif ul-ntal or the ruler to provide to the needy his basic necessities of life. It is the duty of the entire Ummah rather of every person to see to the comfort of his neigh-- bours or the destitutes. The Imam or the ruler acts only as the represen­ tative of the Ummah. 74. This policy does not only inculcate a source of cooperation and love among the people, uproots the feeling of jealousy of the poor or oppressed towards the rich or the prosperous but also eliminates the difference between ihe haves and the have-nots. 75. The ultimate responsibility for satisfaction of the basic needs of the people lies on the state (See 59 : 7-8, Q. 9 : 60, Q. 4 : 6). 76. The following traditions reinforce this principle : "Allah and His Messenger are the guardians of those who have no guardian (Tlrmizi)". '''The ruler is the guardian of one who has no guardian (Tirmizi)". "One who leaves behind wealth, (it) is for his family, and I am responsible for the dependents (one leaves behind) (Tinnizi) in straightened circumstances. (Kitab-ul-Amwal by Abu Ubaid, P. 220). "One whom Allah the All Mighty the Exalted puts incharge of some of the affairs of the Muslims and he turns his back on their needs and necessities and proverty, Allah will turn His back on his need and necessities and poverty" (Abu Da wood). 77. These are the general principles of brotherhood among Muslims and of close fraternal cooperation between the rich and the poor, the wealthy and the down-trodden, the fortunate and the unlucky. It regulates the relation between the master and slave and emphasises that a bondsman is not a commodity. He is a human being entitled to be treated as such. Like others his dignity is also inviolable. It also similarly regulates the relationship between an employer and employee and between master and servant. It strikes a balance between the two in order to create lasting harmony. If on the one hand it does not fix any ceiling on earning, on the other hand it lays down guiding principles for spending the wealth, for consumption and for saving. If it allows trade it regulates market mechanism. If it gives free rein to enterpirse it also lays stress upon the dignity of work and labour. The concept of exploitation of the weak by the strong is absolutely foreign to its ideals. It cannot countenance such a law of supply and demand that from a crowd of starving workers the capitalist may select those who accept his offer of wages below subsistence level and be willing to work under bad or insufficient hygienic conditions for long hours fixed by him. It imposes a duty on the employer to look to the comfort and well being of the employee, to treat him as his brother and not to allow him to work harder than that which he is capable of. In case of his fiilure the State can step in to give effect to Shariah require­ ments. Similarly the workers cannot be allowed to let an industry stand still in order to impose their unreasonable will and demands. 78. The world economy was quite simple in the early period of Islam but it had full realisation of the concept of self interest among the rich and the weak bargaining power of the poor and the starving. Simi­ larly it realises the danger of a combination of workers who may group together to insist on unreasonable demands of very high wages. It deals with the rights and liabilities of both because in the happiness and content­ ment of both the Segments of population lies a guarantee for national harmony as well as the de>irable increase in output which on the one hand may check an undesirable increase in prices and on the other advances the growth of national as well as per capital income. 79. The contractual relationship between employer and labour is governed by definite principles. < The Quran lays down :— Q. 2 : 279 Wrong not and you shall not be wronged. Q. 46 : 19 and that he may pay them for their deeds and the> will not be wronged. Q. 53 : 39 And that mac can have nothing but what he strives for. Q. 3 : 161 Then shall every soul be paid in full what it hath earned and they will not be wronged, Q. 2 : 286 God does not burden any human being with more than he is well able to bear. 80. The Quran administers a warning against wrong doing and emphasises that a person can be requived for the amount of work done by him and that he cannot be asked to do more than what he is capable of, [Applying these principles to employer and employee relationship it would mean that both of them should desist from committing wrong and do full justice to their role. The labour is required to work and the employer is required to pay him full for the work. The employee cannot be burdened with more work than he is capable of doing and the employer cannot be burdened with wage increase or other demands which he is not capable of meeting, keeping in view the nature of his business. I 81. An important rule is that the wages of a worker should be paid (without delay. 82, The Prophet sar° "pay the worker his wages before the drying of his sweat. (Bukhari, Vol. 1 page 462) and then 'non payment of the dues by a rich person is cruelty (Baihaqi, Vol. VI, page 27). 83. The Prophet said that Allah said : "I will be opposed to three (type of) persons on the Day of Judgment., , thirdly the person who engaged a worker made him perform his duty fully but did not pay his wages (Bukbari, Kitab-ul-Ijara , Ch. 1408, Hadith No. 2114). 84. Another principle is that the contract between the employer and Ithe employee should be specific and unambiguous in respect of his terras and conditions of employment i.e. the wages he is to be paid, the work he is to do and the time limit for the work he is to do. The Prophet forbade Ithe employment of labour without setting their wage, (Baihaqi, Vol. VI, page 13). 85, It is related by Humtnad bid Abu Suleman that a person enquired from him about the verdict in regard to engagements of a labourer oo condition that he may eat food. He replied that this should not be done without settlement of wages [Nasai, Vol. HI, page 49 (Urdu)]. 86. Yet another principle is that a worker should not be made to ar more burden that he is capable of. The Prophet said them and if you impose h upwn «. ing it (Bakhtti, Vol. HI, p. 232) . The principle is as stated by the Prophet in another tradition : "None of you will be a perfect believer, unless he wishes for his brother Muslim what he wishes for himself (Baihaqi, Vol. I, P. 9). It is said in Muhalla by Ibne Hazm that it is obligatory on the emplo­ yer to subject the employee only to such amount of work which he can do easily. He should not be made to work so hard that it may affect his health (Islam ka Iqtisadi Nizam, page 295). 87. Although the principle is that wages should mutually be settled but the Sharia furnishes sufficient guidance in respect of wages level or the minimum wages. 88. Reference has already been made to a tradition in which the Prophet said that Allah would be the opponent of three persons i.e. one who makes a promise in the name of Allah and breaks it, the other who sells a free man and the third one who engaged a labourer, made him work and did not pay his wages". (Bukhari, Kitabul Ijara, Ch. 1408, page 2114). In Baibaqi the word wages is qualified by the word 'reasonable' which means that the wages which are to be paid should be reasonable. 89. la another tradition the Holy Prophet said : — "Give food and clothing to the servants according to the prevalent custom and impose such burden that they can bear". (Bnkhari, Urdu Translation, Vol. Ill , page 232). 90. The traditions quoted in relation to treatment of slaves are also applicable to servants. The Prophet said : — "They (your slaves or servants) are your brethern. God has placed them under your control ; so whoever has his brother under his control should feed from what he himself eats and give similar clothes which he himself wears and don't impose on them task which should be too hard for them. If you impose on them such task then help them in performing (the same) (Ibid, p. 232). 91. The Prophet emphasised the need of giving moderately good and clothing to the employee which means that the minimum wages should be such from which good food and clothes may be purchased. 92. Uthman the third Caliph is reported to have said : "Do not over burden your unskilled female employee in her pursuit of a living, because if you do so, she may resort to im­ morality, and do not over burden a male subordinate, for it you do so, he may resort to stealing. Be considerate with your emplo­ yees and God will be considerate with you. It is incumbent upon you to provide them with good and lawful food. (Muwatta Imam Malik) (See 'Islam' edited by Khurshid Ahmad, page 182-4, Dr. Muhammad Umar Chapra's Article "Objectives of the Islamic Economic Order). 93. Ibn-e-Hazam said that it is not material if the wages are not mentioned in a contract of employment of labour as customary wages will be paid on the principle " f-t -~' !T>Jj^l " (what is directed by the custom is as if stipulated in lawj (Ela-us-Sunnan), Vol. 16, page 213). 94. Allama Kasani said that if a labour contract is fasid ( -A-U ) in the sense that it does not provide some condition (of wages) customary wages will be payable to the labourer. According to him there is consensus of jurists on the point that where wages are not settled, customary wages are payable (Badai-us-Sanai, Vol. IV, page 218). (The same principle is laid down in Fatawa-e-AIamgiri, Vol. IV, page 412). There is a maxim that "a thing known by common usage is like a stipulation which has been made (S. 43 Mejella). 95. There is also a maxim as to how custom is to be determined. "A thing known amongst merchants is as they fixed by stipulation between them". 96. As already stated the labour laws in this country are based upon ILO Conventions and recommendations which are also adopted by other countries of the World. The ILO is working since after the First World War and has made important contribution is this respect. In one sense ILO Conventions and recommendations are international conventions in the nature of treaties which the Signatory Governments should follow according to Shariah too. In another sense these Conventions enjoying as they do general acceptability, can be said to be laying down world customs. 97. There is no Shariah bar for the State to determine terms and conditions of employment and if knowing them a person employs labour he shall be treated to have agreed to those terms and conditions. In this sense the provisions of these laws have a contractual significance and (according to Quran it is incumbent upon the Muslims to fulfil their pledges, their contracts. The labour laws are justifiable for this reason £00. 98. There is sufficient guidance in Islam in respect of minimum wages. Minimum wages are wages which should be equal to atleast the subsistence level from which the labourer may fulfil his requirement of necessities according to the prevailing custom. As the family organisation is a part of social set up in Islam the wages should be sufficient for the sustenance of the dependents too. But then what is meant by sustenance. 99. The Quran says : "And there is no animal in the earth but on God is its sus­ tenance''; - (Q. 11 : 6). 100. Allah's promise to Adam throws lurid light on this point. Quran says : Q. 20 : 118 "It is (vouchsafed) unto thee that thou hungerest. not therein nor art naked. 0-20:119 "And thou thirstest not therein nor are exposed to the sun's heat". 101. These verses define sustenance as food, clothing, water and shelter which is the duty of the vicegerent to procure. 102. A tradition is reported in Mushad Imam Ahmad, Vol. II, page 387 which goes further than the above principle. The Holy Prophet advised his Companions ! "Give a share to the labourer from his work because no worker of God is sent back unrewarded'', 103. Imam Ghazali described this with reference to Masalih (?JU«) which generally means acquisition of benefit and elimination of damage. But he uses the word in a more elaborate sense. He uses it in the meaning of objectives of Shariah which extend to the protection of five things i. e. (1) Deen ^religion), (2) Aql (rationality and intelligence) (3) Nafs (self of a human being) (4) Nasl (progeny) and (5) Mal (property). Any means of protection of these five is known as Maslaha (&.) and whatever harms or destroys them is mafsada («.v~««) (i.e. corruption or mischief) removal of which is also maslaha. 104. The Maslaha in view of its importance and significance is of three kinds : (1) Necessities) (Zaruriyat (2) Conveniences (Hajiyyaf) and (3) Refinements (Tahsiniyat), 105. Necessities are the highest form of Maslaha and the protection of the above five things falls m that category. Punishment to an innovator in religion is protection of Deen. Qisas ensures protection to life. Punish­ ment of drinking liquor protects rationality and intelligence which is affected by intoxication. Punishment for adultery guards the legitimacy of progeny and punishment of thieves affords protection to property, 106. Conveniences (hajiyyat) is the second category of Maslaha e.g. the authority of the wali (guardian) over a minor. Though it is not neces- sary but it is a means of attainment of "(-osUa-," (masialta). The authority of the wali may also differ. When the authority extends to securing for the children food, clothes and training (^ ,'>) etc. it becomes a part of zaruriyat. In other matters it may fall within the category of con­ veniences. 107. The third category of Tahsiniyat may be illustrated by the ad­ option of better means in matters of worship and public and private deal­ ings (COLU-) (Al Mustafa, Vol. 1, pages 286-293). 108. The above classification is not much concerned with the economic behaviour of man unlike the economic classification or necessities, comfort and luxuries but it appears that all which is necessary to sustain a person like food, clothes shelter, medical facilities and even education of children are included in the term 'necessities' in the acquisition of which all hurdles should be removed. 109. Shatibi, however, is more specific in Al Muwafaqat, Vol. II (pp. 8-25). He maintains the same three categories and the classification of necessities / e. preservation of religion, life, progeny, rationality and intelligence and finally wealth. He explains the preservation of life on the principle of "fj'}" (Adah) i.e. customary way and says : "The principles of Adah («JU) are based on the (instinct of) preservation of life, rationality and intelligence (for which man needs) to eat and drink, to have clothes and home etc." 110. Shatibi subdivides necessities as (I) those which are urgently required for protecting life e.g. food, home, dress, marriage, contracts of sale, means of sustenance on which his life is basically dependent and (2) those which are not so urgently required , ..... .. 111. According to him Shariah objectives are either fundamental (-sU»!) or subordinate or dependent ( D'). Fundamental objectives arc those which a person who is responsible or accountable must achieve with­ out consideration of pleasure motive, in all circumstances in all ages and at all times since they are considered as necessities by (all) nations and in their achievement lies the common and absolute good, 112. These necessities are ainiyya (individual duty) and kifaiyya (group duty). 113. So far as ainiyya is concerned every person is under a duty ...... ...... to preserve his life, intellect or intelligence so as to remain capable of obeying other sharia orders, to preserve his offspring so as to ensure better relations between parents and children and to preserve his property to enable him to preserve the other four referred to above. 114. But the group obligation or the social obligation (^U) is (as distinguished from the duty of each individual or (&) the collective duty obligatory for all the individuals. This (duty) is relatable to the protection of common interests without which the individual interest cannot be served. This second kind supplements the first one, and consequeatly they are also necessary. Individual necessities cannot be achieved without the realisation of social necessity. Social obligations are for the common good of the entire creation. Any action taken in this behalf does not revert to a specific person, because it is not for him alone. (If it had been for him aione) it would be Ainiya (individual duty). These actions are really for the existence of a humanity (a person). The fact is that he is the vicegerent of God amongst His servants to the extent of his own capacity. Whatever ability he has for this, a single individual does not have the capacity to protect his own interest much less the interest of his family, tribe or the people at large. Allah appointed the humanity His Vicegerent for fulfilment of common needs. This is the reason for establish­ ment of State. 115. The principles which emerge from this discussion are :— .(!) It is primarily the duty of the individual to work for the fulfillment of his five needs including the njed of feeding, clothing and providing shelter to himself and his family. This is the discharge of bis individual obligation. (2) The fulfilment of individual ne«d,s is also largely dependent upon the discharge of the duty by the society (^Us .,?/) who help according to their capacity and ability. (3) Ultimately the State is to help in the fulfilment of common good! of the society which includes the fulfilment of needs of individuals! too as part of totality of individuals. | According to Nawavi, socially obligatory duties include "elimination of suffering by providing clothes to the uncovered, food to the hungry (Minhajul-Talibin wa Umdalul Muffin, page 125). 116. Ibo-e-Hazm is more specific on this issue. He says : — "it is the duty of the rich in every country to support their poor. If the Zakat revenue and tax does not suffice for this purpose the ruler will oblige them to fulfil their responsibility. Enough funds will be moblised for these (needy people) to provide them with food, clothing for summer and winter, and a house that protects them from rain, heat and sun and gives them privacy" (Al Muhalla, Vol. 6, page 156). (Cited frora the paper 'Guarantee of a Minimum Level of Living in an Islamic State—Basis in Shariah, Rational and Contemporary Implications' by Dr. Najatullab Siddiqui contributed at the Second Internationa! Conference on Islamic Economics- Islamabad 1983). 117. Aluwakhat (brotherhood) introduced by the Holy Prophet in Medina for the amelioration of the economic condition of the" Muhajirin is based on the same principle. 118. It is generally said that the State has ncr right to interfere with private property, free enterprise, free trade, prices charged or chargeable by businessmen or industrialists, relations between employer and employee, relation between master and servant or between landlord and tenant or between agent and principal, right of contract etc. None of these concepts hold good in Isiam. They are misconceptions created during the era of feudalism and have now been inherited by Capitalism. 119. Islam confers very wide jurisdiction on the Imam or the State to regulate ownership, enterprises industry, industrial relations, trade, trade ethics, the producer-consumer relationship in relation to the cost of things produced, occupation of houses required for accommodating the shelterless and their rent, relationship between the owner of land and the tenant and relationship between the employer and the employee. Generally these matters pertain to the field of contract but Islam allows contractors to be regulated and the contracting parties to be made subject to discipline in order that public welfare may be ensured and mischief may be subdued and eliminated. This would be clear from the discussions in Fatawa Ibn-e- Taimiya, Vols. 28 and 29. 120. While dealing with the power of men in authority like the Muhtasib and others, Imam Ibn-e-Taimiya mentions the regulatory laws pertaining to contracts in the Quran and the traditions of the Prophet. The Muhtasib has a duty to see inter'dlia that there is no breach of trust and people should be restrained from what is prohibited like lies and false­ hoods, breach of trust, reduction io weight or measures, adulteration or fraud at the time of production, sale and lending of things. Allah says :— Q. f : 1 Woe unto the defrauders. Q. 83 : 2 Those who when they take the j-'dl J I^JbTl IJj measure from mankind demand if full. Q. 83 : 3 But if they measure unto them or weigh for them, they cause them loss. Q. 6 : 153 Give full measure and full weight - ^ in justice. Q. 26 : 181 Give full measure, and be not of those who give less (than the O due). Q. 26 : 182 And weigh with the true balance Q. 26 : 183 Wrong not mankind in their goods, and do not evil, making mischief in the earth. Q. 4 : 107 Lo! Allah loveth not one who is treacherous and sinful. Q. 12:52 And that surely Allah guidet not the snare of the betrayers.(Majmuul Fatawa by Ibn-e-Taimiya, Vol. 28, p. 7!) 121. The Prophet said'one who defrauds us is not from amongst us' 122. In sales deceit is resorted to for concealment of defects — fraudulent or otherwise—in the commodity that it is when the appearance of the commodity belies its reality. Deception enters in preparation of food as bread, cookry, pulses, soup etc. or in manufacture of cloth at the stage of weaving of textiles or preparation of clothes or manufacture of other such things. It is necessary that those who produce these things may be prevented from committing fraud or breach of trust or concealment (ibid, p. 72). 123. Imam Ibn-e-Taimiya after relating the law against fraud and riba proceeds to discuss price control which becomes necessary on account of the tendency to raise prices in'eralia by resort to hoarding and monopoly wbich are condemned by the Prophet. In such contingency when the people are subjected to this tyranny by the hoarders and unscrupulous business­ men it is the duty of person in authority to force the traders to sell at the prevailing rate (which but for the untoward increase ought to have pre­ vailed). This action is more essential in case of increase of price of articles of food which may cause suffering to the people. The jurists have ruled that if some starving person comes upon food belonging to others he can take it without his permission on payment of its prevailing value. If some­ body refuses to sell except for the increased price he can be forced to sell it on that price (prevailing) (Ibid pp. 75, 76), 124. The question of validity of Taseer or price control ( js~ ) has already been decided by this Court in SSM No. 103/83. It may, however, be added that according to Imam Ibn-e-Taimiya Taseer is necessary in Shariah in many circumstances. He equates price control with wage cont­ rol and justifies it on the principle that in the case of essential industries which arefarz-e kifaya (obligatory on the group and not the individual) it is incumbent on the government to save the consumer, the producer as well as the worker from loss and to control wages as well as prices. According to him it is also a right of Allah that essential articles may be sold on the prevailing customary price and this obligation extends to all who are parties to manufacture or sale. In order to understand the reason­ ing of the great Imam it is necessary to give a summary of his research and arguments. The principle is that no compulsion is valid in sales except for Haq (advancement of what is right). The exception thus legalises compul­ sion whenever necessary for Haq. For example, the sale of property of a debtor for the satisfaction of his debt and for the payment of maintenance to which he is liable is lawful. On the same principle compelling sale on prevailing price is not valid except for Haq. Thus in many a contingencies, it may be lawful. For example, a straving person can satisfy his hunger from the food belonging to another person. He is liable to pay the pre­ vailing price. Similarly if a parson irrigates another person's land and constructs over it (without permission) the owner will take possession of his laud after praying him prevailing value of the improvements. 125. Similar is the case of slave owned by two persons jointly. If one of them emancipates his share in him the other co-owner can only be paid the prevailing value of his share. 126. Similary if someone has to give to another maintenance in the form of food and clothes and finds food and clothes which are appropriate according to customary prevailing value, he cannot give any other thing of lesser value unless the person entitled to the maintenance authorises him to do so. 127. For this reason the learned like, Abu Hanifa and his disciples do not consider it lawful for persons who are experts in partitioning of immov­ able property and work for wages that they may combine together and augment the rate of wages keeping in view (to take undue advantage of) the helplessness of the peoples and their dependence upon them. (They can be stopped from this). On this principle it is legal to prevent the sellers from combining and agreeing to sell only on a price assessed or fixed by them. Likewise the purchasers can also be prevented from combining so that one of them may purchase all the property so. that others may be deprived of it. 128. If a group is allowed to combine to purchase some commodity with the intention to purchase at a value lesser than the one prevailing cus­ tomarily and to sell it at a value higher than the prevailing value and thus to obtain (undue) benefit of their transactions, it would be a greater tyranny than (i) receiving saleable property outside (the town) and purchasing it there from persons coming from outside the city (who are not aware of the prevailing value) or (ii) setting persons to advance loans so that the value may increase ( J^ ). This is an attempt to frustrate the intention of the consumer to purchase thing at the prevailing rate, 129. The people ate in need of Industry and manufactured goods, for example, cultivation of land, weaving of textile and construction of houses, because they require food for eating, clothes for wearing and houses for shelter. During the period of the Holy Prophet cloth was imported from Yemen , Egypt , Syria and other places from the unbelievers and people used to wear what was woveo by the unbelievers without washing it. If the imported cloth is insufficient (for ihei. needs) people would require that it should be manufactured for them. They require food whether it is brought from outside or is grown, as it generally happens in the country. They require houses for shelter which it is necessary to conitruct, 130. All the jurists from among the followers of Shafei and Ahmad bin Hambal, like Abu Hamid-ul-Ghazai, Abdu! Farj Binual etc. say that the production and manufacture of these things is farz-e-kifaya as the requirements ((U-) ( of the people are not met except by these things. It is like Jihad (holy war) which is also farza-e-kifaya unless it becomes farz-e-ain, which it becomes when the enemy attacks the country or the Imam directs a person to participate in it. 131. u»y (/arz or obligation) is of two sorts farze-e-ain and Jars-e-kifaya fatiF^fji) ), The former is that whereof the obser­ vance is obligatory on every one, and does not become less enforceable in consequence of the observation (thereof) by some, as religious belifs and the like. The latter is that whereof the observance is obligatory on the collective body of the Muslims, and in consequence of the observance (thereof) by some, becomes optional in respect of the rest, as warring against unbelievers and the prayer over the dead in the bier (See Arabic English Lexicon by Lane on the word Faraiz). 132. Imam Ibn-e-Taimiya proceeds to say that acquisition of know­ ledge of Shariah is also a. farz-e-kifaya unless it becomes fars-e-ain which it becomes, for example, when everyone knows what Allah ordered him to do or prohibited him from doing ..... 133. Similarly, giving bath to a dead person or giving him shroud or offering prayer ob him or burying him is also farz e-kifaya and so is the order commanding a person to do virtuous deeds and asking him to refrain rom what is prohibited and this necessitates setting up of Ministries like War Ministry or Judiciary or Hisbah (office of Mohtasib) and such authori­ ties (Ibid, page 81). 134. The object is that ail these actions which are fars-e-kifaya should be performed ( y those who can perform them), particularly when others may be incapable of performing them and necessarily have to depend upon them, Some people may carry on cultivation, some may manufacture textiles and some may construct buildings. All these acts are rendered obligatory on them (-.»U). If they stop from pursuing these professions the Imam (person in authority) can force them to follow them on payment of customary wages. They have no right to claim wages in excess of what is customary nor the people should pay them less than that to which they are entitled. It is analogous to a case when an army is bound for Jihad. It then becomes obligatory on those persons who can take to land to carry on cultivation. The army people are also bound not to be pitiless to the cultivator if he is obliged to cultivate for the army, 135. After considering the different views on the question of Ziraa or cultivation of land and giving his own opinion on the point of law­ fulness of the conditions on which lease of land is perraissiole. Imam Ibn-e-Taimiya said : "the object of this is that if the person in authority compels the manufacturers of things essential to the people like cultivation, manufacture of textile, and construction of houses and to fix the prevailing wages, in such circumstances it will not be open to any employer to reduce the recompense of the manufacturer. Similarly it will not be open to the manufacturer to demand in excess of what has been fixed as com­ pensation for his work. This wages control is obligatory. Likewise if the public necessity demands the manufacture of the tools and implements of war like weapons and bridges etc. they will have to be manufactured on the prevailing value and it will not be possible for the manufacturer to claim any excess. This is known as control of labour 136. In matters or things essential for Jihad like weapons, it is necessary for the person dealing in them to sell them on the usual prevail­ ing rate. It will not be permissible for the (seller) to stock the weapons and refuse to supply them till the enemy gets control or the value as demanded by him is paid to him. If the Imam orders people to fight it becomes a farz-e-ain for them as the Holy Prophet said : when you are called for Jihad (tjji\i ^J^i^u.! o'j) you must respond to the call (Bukhari and Muslim. Tn Bukhari it is also said that the Holy Prophet said that it is duty laid down on the Muslims to hear and to obey in all matters whether difficult or easy or whether one likes them or not and whether he has other liabilities. 137. Now if one must participate in Jihad bodily and financially, how is it possible that any thing required by him for Jihad may not be available on payment of the prevailing value. Ashhab (^^.-1) related from Imam Malik that the Inspector of Markets can impose price control on the butchers also because such control is beneficial to the purchasers and cannot be harmful to the sellers. 138. Iba-e-Habib laid down the procedure for fixation of prices. According to him them should be fixed in a joint meeting of the leading traders and other people so that no loss may accrue to the traders and the benefit of the consumer may be guaranteed. 139. The traders can be forced to sell their stocks and that alsoj at the prevailing value and in case of violation of the order, can beU» punished. | 140. The Hadith of manumission of his share in slave by a co-owner has already been reproduced. Imam Ibn-e-Taimiya draws a conclusion from it that it becomes obligatory on the other partner to liberate him after charging the customary prevailing value of his share. It may be recalled that one version of that Hadith is that if the slave is not able to pay the value he will be allowed to earn it by working on wages. 141. The majority of the jurists including Imam Abu Hanifa and Imam Ahmad say that if a thing is shared by several persons and it is not possible to partition or distribute it among partners, it will be put to sale and the proceeds thereof shall be distributed among the shareholders even if its sale is resisted by some of them (Ibid, p. 96). 142. Imam Ibn-e-Taimiya concludes that if the law-giver (the Prophet) declared it incumbent upon the shareholders to sell on the customary price that which is joint if even one of the shareholders so desires, it will be more reasonable in the case of requirements of meals where the necessity is more acute than in the matter of liberation of a slave to procure the same (meals) on a rate fixed on the same criterion. 143. It would follow that if a person is in dire need of a house and enters another persons's house it is incumbent on the owner of the house to accommodate him. Similar is the rule about clothing a person who is in acute need of clothes. This should be done without changing the price (Ibid, p. 98). 144. The object of the Hadith is that there is an obligation on the owner in particular cases to sell his property at the priced assessed accord­ ing to the customarily prevailing value or the price at which he himself purchased it. The assessment of price (on this formula) is not prohibited. The appraisal of price in the case of slave was for the purpose of completing his liberty. The principle is that there is right of Allah in things which are needed by the majority of the people within the limits fixed by Allah. Consequently there are more compelling reasons for assessment of customary prevalent price of such commodities which are essential for the Muslims as food, clothing and other things of public utility than in the case of one slave whose liberation is in the balance. In the case of a slave the harm may be to one particular person but in the other case the harm will be to the general public. Naturally it is a greater harm and would amount to gross in justice (Ibid, p. 100). 145. Even those who are opposed to price control only go to the extent of saying that control should not be imposed unnecessarily. It can be imposed if the rise in prices is unjust. The forced sale of essential com­ modity in the stock of a hoarder bears close analogy to the sale of property of a debtor for payment of his debt, 146. The Holy Prophet did not approve of undue rise in prices. He directed that a person knowing the rates of prices of commodities in the city should not be an agent of a cultivator in the rural areas since there is an apprehension of the prices rising as a result of such agency. This is notwithstanding the lawfulness of agency (Ibid, p. 102). 147. The reasoning of Imam Ibn-e-Taimiya in favour of control of price of essential goods is based on the following principles : (1) running'6f essential industries is farz-e-kifaya. (2) The supply of essential goods at reasonable prices is right of Allah. (3) The harm to the interest of the public must be redressed by Iffiplative process and by imposition of ianctions. (4) The public weal cannot be allowed to be sacrificed to the interest of the few. The latter are under duty to subordinate self interest to public interest. (5) While imposing control the concept of justice to all should not be ignored and Zarar (harm) to all parties i.e. producers, traders and consumers should be avoided. (6) The State control on wages of labour is analogous to price control and is justifiable wherever necessary to avoid Zarar or harm to the public. 148. There are traditions about control by rationing which justifies the Imam's inferences. 149. Mohammad bin Alaa, Hammad bin Usama, Buraida, Abu Burdah relate from Abu Musa, who said that the Prophet observed that when people belonging to Ash ar tribe are reduced to penury either on account of Jihad or scarcity of food for their children in Medina, they pool together what is with them in a piece of cloth then distribute it among themselves equally by the measure of a utensil. They are from me and I am from amongst them. (Bokhari, Kitab.ush-Shirka). 150. The approval of pooling together the food resources of a group and of their equal distribution amongst ail the people belonging to the group is justification enough of the rationing system. Rather it is much in advance of that system. In the rationing system the resources of the scarce essential commodity are pooled by the government by paying to the cultivator, manufacturer or owner price thereof and the same is distributed among the members of the public on payment of fixed price which is generally subsidised by the government. But in the Hadith referred to above there is no mention of payment of price. Some persons may have none and some may possess less. But they have to throw the entire quantity of the commodity in the common pool and the distribution is also without payment of price. The principle which emerges from this Hadith is that in time of distress or scarcity the haves are hound to contribute to the pool that they have for equal distribution among them and the have nots. The Prophet's approval of these actions and his own identification with them ([»4-' IJ'J ^ (»») does not leave it to the option of the haves but makes it obligatory upon them to surrender all that commodity to the pool. It follows that if thev are not willlrg to do it they can be forced to make the contribution and all that they possess can be taken possession of by the government. 151. This subject was also dealt with by Hafiz Ibn-e Qayyim in Al Turuq-ul Hukmia pages 223-239. He also favoured the control on wages (Ibid , p. 230- 152. In Almausa-al Fiqhia (compilation of laws) compiled by the Government of Kuwait, it is said that in some cases the wages may be controlled by the Government (See Vol. 1, page 320). 153. Mawardi was of the view that the Gover ment officials should have the power to interfere with and stop any encroachment upon the rights of labour e.g. payment of less wages or making them work fof longer hours (AJ Ahksm-ul-Sultania, Ch. 20, p. 242), The need for State ieterference inheres in the Quranic scope of earning and property. 154. The Quran calls property and earning ( 'U») Fazl meaning (favour) e.g. Q. 2 : 198, 268; Q, 3170, 179 ; Q. 4 : 37, 54; Q. 9 : 28, Q. 59 : 74, 75, 76) >.»j (Rahmah meaning mercy or grace) (Q. 17 : 100; Q. 18 : 16, 82 and U«,» Ujj (Rizqan Hasana) meaning fair sustenance e.g. Q. 11 : 88 ; Q. 16 : 75). 155. But these appellations apply to what is earned or acquired in a manner and what is dealt with in the manner prescribed ; since man may be tempted to acquire it by illegal means and may not spend it as ordained in which case it is called ";;»'' (i.e. a test or temptation or even mischief) Q. 8 : 28; Q. 64: 15). 156. The prescribed manner is undoubtedly honest work and labour, which is free of any tinge of exploitation. Any apprehension of exploita­ tion of one by the other would necessarily attract Government interference for the elimination of fitna or mischief. 157. Economic matters have now become political questions since the promotion of prosperity of the nation is one of the aspirations of each nation. The importance of State intervention in regulating trade and industry cannot be overemphasised. Industrial expansion, increase in production, search for markets for export of the goods produced are necessary for the prosperity of a nation. They give rise to many complex questions which cannot be resolved by private planning, State planning makes itself felt in the discovery of sources of raw material or the selection of site for setting up any particular industry, in planning the product! n of that which is required, in capturing consumer markets. No industrialist can work in isolation when the field of economic activities is so widened and has become international. 158. Since the acceptance of responsibility for full employment the State had to assume greater interest in economic affairs than everbefore. The result is that 'the greater the extent of State planning, greater is the intermingling of economics and polities'. Similarly the greater the intermingling of economics and politics the greater the requirement and extent of State planning. Such planning becomes a part of siyasat-e-sharia in which State's intervention and for which State regulation becomes necessary. 159. If the capitalist and the industrial worker both eschew their self interest and combine to produce as brothers in accordance with Sharia requirements there may be hardly any scope for State interference. But if the dictates of self interest compel one to exploit the other, the resistance to exploitation by the other will certainly be a source of disharmony. The lock outs and the strikes disrupt production and supply of goods for the consumer and on account of scarcity of commodities may result in the enhancement of prices. The worker is likely to be more hard hit. Lock outs and strikes only add to his raisfry and dissatisfaction. They may create law and order situation. The modern economics is so complex that it would be unrealistic to ignore these problems. To leave the employer would directly and employee relationship to be straightened without State intervention would directly affect the national economy. This is a ' case for State Regulation inter alia of this relationship. 160. As seen above from sharia precedents this relationship even in its simplest form was regulated by the Prophet and after him by the Caliphs by preaching and acting upon the blessings of brotherhood, spend­ ing in charity by the rich, paying satisfactory wages, fixing the level of wages, restraining the employer from subjecting the worker to harder work which may affect his health because in Islam the good of the Ummah and its individual members is a political question. State regulation is now more essential in view of the added responsibility of the State towards the expansion of trade business and industry and search of avenue for employ­ ment of its people. 161. if State control U given up and the industrialist is left to his own devices to recruit labour on competitive terms and conditions of service and to hire and fire them at will he will be in a position to restore status quo ante and dictate terms to the labour, who will be forced to accept employment to make two ends meet and earn wages even though they may be below the subsistence level. This will amount to forcing them under Ikrah (compulsion) to accept the terms of employment unilaterally fixed. Can a contractual relationship created by Ikrah be treated to be valid in Sharia ? 162. On the other hand assume that all the labour in Ihis country is united under a trade union and is in a position to dictate terms to the industrialist and refuse to work except for very high wages which may result in total disruption of industry or in production of goods at a very high and uncompetitive cost. The shoe of Ikrah is now on the other foot. In the present day economic world both these situations will be unrealistic. The loss and damage which may be caused by acting on either of the two extremes can be controlled only by State regulation of capitalist-labour relationship. 163. Imam Ibn-e-Taimiya justified State control in the second contin­ gency and held that if industrial workers continue to refuse to work except for enhanced wages the State can intervene and force them to work for the usual customary wages (J.— '.?••')• This is one instance of controlling the urge of self-interest: There is no reason why similar urge on the part of the capitalist may not be controlled. State regulation and control is thus essential in Sharia for the advancement of public weal and elimination of mischief and damage to the Ummah. The two laws may now be considered. SSM No. 226/82 INDUSTRIAL RELATIONS ORDINANCE No. XXIII of 1969 164. The industrial Relations Ordinance No. XXIII of 1969 amended and consolidated the law relating to the formation of trade unions the regulation of relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them or mutters connected therewith and ancillary thereto. 16S. The freedom of association is a fundamental right which is also recognized by Islam (O'jJi.' 1 1 vWl J| jh^ ^ J i$»"^ ! JjJ' ^ vtl ^'J 1 ')- The Ordinance recognizes this right of the workers to join association of their own choosing with the condition that he cannot be a member of more than one trade union at any time. Similarly, the employer's right to establish and join association is also recognized (Section 3). 166. Section 6 deals with the requirements for application for registration while Section 7 makes an elaborate provision that before a trade union is registered its constitution should provide for many a matters detailed therein. The requirements of sub-section (d) is however important since it provides that the executive of the trade union shall include not less than seventy five per cent from amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the trade union has been formed. Thus it allows the executive to consist of not more than twenty five per cent of out-siders or persons other than workmen in the establishment, establishments or the industry from which the trade union has been formed. 167. Section 8-A provides that save with the previous permission of the Registrar, no officer of a trade union or workmen shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union, provided that the name of the officers who communicated in writing by the union to the employer, 168. The registration of a trade union can be cancelled by the Labour Court on proof charge of contravention of any provision of the Ordinance or contravention of any of the provisions of its constitution, or incorporation in the constitution of any provision inconsistent with the Ordinance or the Rules. Similarly, election by the union as an officer of trade union of a person who is disqualified from being elected can also be visited with the punishments of cancellation of registration. Section 15 deals with the unfair labour practices on the part of the employer which include victimization of a member of the trade union. Section 16 simi­ larly deal with unfair labour practices on the part of the workmen. 169. These two Sections are reproduced below : — "15. Unfair labour practices on the pan of employers — (1) No employer or trads union of employers and a person acting on behalf of either shall— (a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue has membership of a trade union, or (/>) refuse to employ or refuse to continue to employ any person on the ground that such person is or is not, a member of officer of a trade union, or (c) discriminate against any person in regard to any employment, promotion, condition of employment, or working condition on the, ground that such person is or is not. a member or officer oi a trade union, or {d) dismiss, discharge, icmove from employment t,or transfer) or threaten on dismiss, discharge or remove from employment or transfer a workman or injure or threaten to injure him m respect of his employment by reason that the workman— (/) is or purposes to become, or seeks to persuade auy other person to become, a member or officer of a trade union, or (ii) participates in the promotion, formation or activities of a trade union. (e) induce any person to refrain from becoming, or to cease to be a member or officer of a trade union, by conferring or offering to confer any advantage oa, or by procuring or offering to procureany advantage for such person, or any other person. ( /) compel or attempt to compel any officer of the collective bargain­ ing agent to arrive at a settlement by using intimidation, coercios, pressure, threat confinement to a place, physical injury, discon­nection of water, power and telephone facilities and such other methods. (g) interfere with or in any way influence the balloting provided for in Section 22 or (It) recruit any new workman during the period of a notice of strike under Section 28 or during the currency of a strike which is not illegal except where the Conciliator, has, being satistied that com­ plete cessation or work is likely to cause serious damage to the machinery or installation, permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur : (i) close dawn the whole of the establishment in contravention oi Standing Order 11-A of the West Pakistan Industrial and C >m-mencal Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No. VI of 1966), or (/'/) commerce, continue, instigate or incite others to take pan in, or expend or supply money or otherwise act in furtherance or sap-port of, an illegal lock out. (2) Nothing in sub-sectioa (I) shall be deemed to preclude an em­ployer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being a member or officer of a trade union of workman''. 16, Unfair labour practices on the part of workmen— (1) No workman or other person or trade union of workmen shall— fa) persuade a workman to join or refrain from joining a trade un,<on during working hour?, or (i) intimidate any person to become, or retrain from becoming, or to continue to be or to cease to be a member or officer of a trade union, or (c) induce any person to refrain from becoming, or cease to be a member or officer of a trade union by intimidating or con­ ferring or offering to confer any advantage on or by pro­ curing or offering to procure any advantage for such person or any other person, or (</) compel or attempt to compel the employer to accept an\ demand by using intimidation, coercion, pressure, threat, confinement to, or ouster from a place, dispossession, assault. physical injury disconnection of telephone, water or power facilities or such other methods. (e) commence, continue, instigate or incite others to take part in or expend or supply money or otherwise act in furtherance of support of an illegal strike or a go-slow, lQ this clause, go-slow means an organized, deliberate and purposeful slowing down of normal output or the deterioration of the BOTsnal quality of work by a body of workmen acting in a concerted manner, but does not include the slowing down of normal dispute or the deterioration of the normal quality, or work which is due to mechanical defect, break-down of machinery, failure or defect in power supply or in the supply of formal materials and spare parts of machinery, (2) It shall be an unfair labour practice for a trade union to interfere with a ballot held under Section 22 by the exercise of undue influence, intimidation, impersonation or bribery through its executive or through any person acting on its behalf", 170. Secticn 18 provides for immunity from ci\il suit or other legal proceeding against any registered trade union or collective bargaining agent or its officer in respect of matters connected with the performance of their duties, 171. More than trade unions can constitute themselves into a federa­ tion (Section 20). 172. Section 22 provides fur appo/ntment or election of a Collective Bargaining Agent. Where there is only one registered trade union of not less than one-third of the total number of workmen employed in such establishment or group of establishments, it may be certified by the Registrar to be the collective bargaining agent for such establisament or group. However, where there are more registered trade union than one the Registrar shall, upon a secret ballot determine as to which of the said unions shall be the collective bargaining agent in relations to such establish­ ments or group. 173. The collective bargaining ageul in relation to an establishment or group of establishment shall be entitled to- (a) undertake collective bargaining with the euaployci ui employers on matter; connected with employment, n-wc-rnployment, The terms of employment or the conditions of work ; other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under any law, other than this Ordinance, or any award or settlement ; (b) represent all or any of the workmen in any proceedings ; (r) give notice of, and declare, a strike in accordance with the pro­ visions of this Ordinance and (d) nominate representatives of workmen on the Board of Trustees of any welfare institutions or Provident Funds, and of the Workers' Participation Fund established under the Companies Profits (Workers' Participation) Act, 1968 (XII of 1968). 174. Section 23 provides for appointment or election of shop stewards in the shop section or department of any establishment having 50 or more workmen. Shop stewards act as a link between the workers and the employers and assist in the improvement of arrangements for the physical working conditions and production work. They can be appointed by the collective bargaining agent or if there is no agent be selected by secret ballot. 175. In order to associate the workers in the management of the factory employing fifty or more persons provision is made that there shall be elected or nominated from among the workmen in the factory workers' representatives to the extent of fifty per cent to participate in the manage­ ment of the factory. These representatives shall participate in all the meetings of the management committeee relating to the management of the factory except commercial and financial transactions, and the manage ment is bound not to take decision in the following matters without the advice in writing of these representatives :•— (i) framing of service rules and policy about Promotion and discip­line of workers ; (//) changing physical working conditions in the factory ; (in) in-service training of workers ; (ip) recreation and welfare of workers ; (v) regulation of daily working hours and breaks ; (»'/) preparation of leave schedule : and (>'«) matters relating to the order and conduct of workers, within the factory. 176. Similarly there are provisions for setting up iu companies owning Of managing factories, each of which employees fifty persons or more, a joint management board in which the workers participation shall be to the extent of thirty per cent to look after: (a} improvement in production productivity and efficiency ; (6) fis/.tion of fob and piece-rates ; (c) planned regrouping or transfer of the worker : (d) laying down the principles of remuneration and introduction of new remuneration methods ; and (e) provision of minimum facilities for such of the workers employed through contractors as are not covered by the laws relating to welfare of workers. 177. Section 24 provides for setting up of a Work Council consisting of workers' and employers' representation in establishments having fifty or more employees : (a) to promote settlement of differences through bilateral negotia­ tions ; (b) to promote security of employment for the workmen and condi­ tions of safety, heath and job satisfaction in their work ; (c) to encourage vocational training within the establishment ; (d) to take measures for facilitating good and harmonious working conditions in the establishment, to provide educational facilities for children of workmen in secretarial and accounting procedures and to promote their absorption in these departments of the establishment, and (e) to discuss any other matter of mutual interest with a view to pro­ moting better labour management relations. 178. Section 25-A deals with the redress of individual grievance!,. Such grievance shall be brought to the notice of the employer m writing, either directly or through shop stewards or collective bargaining agent, who must decide it and communicate his decision within the time fixed by the Section. In case the worker is dissatisfied with the decision or employer fails to communicate the decision, the matter may be taken to the Laoour Court which can decide the dispute on merits. 179. Section 26 provides for negotiation between the employer or the collective bargaining agent for settlement of industrial dispute which has arisen or is likely to arise. This can be done by bilateral negotiations, But if the settlement is not reached or the bilateral negotiations fail, the employer and the collective bargaining agent may, within seven days thereof serve to the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance with the provisions of the Ordinance. A copy of the notice shall be delivered to the conciliator who shall proceed to conciliate in the dispute, and to the Labour Court (Section 29). 180. Section 30 deals with the procedure of the conciliator. In case of failure of conciliation, the conciliator shall try to persuade the parties to refer the dispute to arbitrator, whose decision shall be final and its award shall be valid for a period not exceeding two years or is fixed by the arbitrator. (Section 31). However, if no settlement is arrived at during the course of conciliation proceedings and the parties do not agree to arbitration the workmen may go on strike or the employer may declare a lock-out on the expiry of the period of the notice on upon declaration of the conciliator about failure of conciliation proceedings, 181. A strike or lock-out may be challenged before the Labour Court, If the strike or lock-out lasts for more than thirty days the competent Government may also prohibit it. The matter in that case shall be referred either to the Labour Court or to a commission known as the National Industrial Relations Commission constituted under Section 22-A and the Court or Commission may give award, which shall be binding on the parties (Section 32), The competent Government may also prohibit strike or lock-out at any time before its commencement in respect of any of the public service or an industrial dispute of national importance. 182. The Ordinance provides for the setting up of labour courts for adjudicating and determining an industrial dispute enquiring and adjudicating any matter relating to the implementation or violation of settlement, trying offences under the Ordinance and exercising and perfor­ ming such other power and functions as may be conferred upon or assigned to it by or under the Ordinance. It also provides for setting up of Labour Appellate Tribunal 183. Section 38-A authorises the Federal Government whenever considered necessary to constitute wage commission for fixing rates of wages and determination of all the terms and conditions of service in respect of the workers of the Bank or such other workers as the Federal Government may, by notification in the official ga/ette, specify. While fixing the wages and determining other terms and conditions, the wage commission may take into consideration the costs of living, the prevalent rates of wages of comparable employments, the circumstances relating to the industry in different region of the country or any other circumstances which may seem relevant to the wage commission. Its decision is an award and becomes binding, 184. Section 45 authorises the Labour Court or Labour Appellate Tribunal lo prohibit continuance of strike or lock-out where it has already commenced. 185. Section 46 deals with illegal strikes or lock-out. There are other miscellaneous provisions and penalties as well as sanction for controvention of the provisions of the Ordinance. S. S. M, No. WP .? ,9.? : THE WEST PAKISTAN INDUSTRIAL AND COMMERCIAL EMPLOYMENT (STANDING ORDERS) ORDINANCE, 1968. 1. The West Pakistan Industrial and Commercial Employment (Stand­ ing Orders) Ordinance, 1968 lays down certain terms and conditions of ser­ vice including leave, group insurance scheme, compulsory group insurance, payment of bonus, termination of employment, procedure for retrenchment, re-employment of retrenched workers, punishments of workers, and their eviction from residential accommodation etc. It also deals with the right of the employer in the circumstances specified in the Standing Order No. II about stoppage of work and as provided in Standing Order No, 11-A for closure of the establishment. 2. As seen above, all these provisions are in the interest of the work­ men and also take into account and provide for resolution of any difficulty accruing to the employer. The attempt is to provide incentive to the workers for showing more efficiency and producing to the maximum. This goal is sought to be achieved by providing for their participation in the management, security of tenure, bar against the removal or dismissal, except for cause, periodical raising of their wages in view inter alia of the increase in the cost of living which on account of inflation is a permanent international feature these days. For this purpose it allows the workers to cooperate and combine in trade unions and also to appoint their bargaining agents for the settlement of their disputes with the employers. The de­ tailed procedure for settlement of disputes through conciliation, arbitration, labour courts and in some cases through the National Industrial Relations Commission is provided. These authorities have the power of adjudication of disputes by proceeding judicially. The object of the laws is that all dis­ putes should be amicably settled and decided and the industry and produc­ tion should not suffer since the reduction in production not only affects the consumers or any industry but the nation as a whole. There can be no obq jection to such type of provision in SHaria since the object of the law is to promote amity and good-will between the workers and the employers and to eliminate the mischief which may he caused by mutual recurring disputes. 3. One point however requires consideration and that i:» about the lock-out and the strike. It has been noticed that according to the opinion of the Muslim jurists if the workers producing essential commodities com­ bine in order to raise wages, they may be forced to work on the prevailing customary wages. This opinion proves that there can be no objection against combination, trade unionism or cooperation. The objection can be raised only when the mischief is likely to be caused by the strike or inten­ tion not to work till unreasonably high wages claimed by the worker are paid. It would follow that if the refusal to work or slowing down is with the object of obtaining just wages, it cannot be interfered with and the employers may be forced to give the worker his due: Even otherwise Islam instils in the members of the Ummah the sense of cooperative dealing. The formation of trade union cannot be objectionabk nor can objection be taken to the appointment of bargaining agent for so long as the interest of the community does not suffers from it. The refusal to work which is now known as 'strike' is also unobjectionable for the above reason. 4. It has already been stated that there is a possibility of -ikrali' or compulsion in the contract between employer and the employee if the em­ ployee takes undue advantage of the unwholesome competition between candidates for employment. This may result in the reduction of the wages even to a degree below subsistence level. This is taking undue advantage of the needs of the candidates for employment. If workers can be forced to work on prevailing customary wages, the employer can also be compelled not to take undue benefit of abject proverty of the unemployed and thus to deny to them the prevailing customary wages. In this view of the matter the provision about cooperation of the workers, formation of trade unions and creation of labour leadership which will not allow imposition of 'ikrah' are very salutary and advance the collective good of the people. The right of lock-out and strike are steps in aid of settling industrial disputet. Effort should be made firstly for elimination of disputes and secondly fo their adjudication in a manner that the possibility of these extreme steps by the employer and the employees is eliminated. 5. For this purpose the law provides for conciliation, arbitration and ultimately the intervention of the National Industrial Relations Commission or the labour courts. In some cases wage commission is also appointed for fixation of wages. The law is, therefore, valid in, all respects and there is nothing in it which may be said to be repugnantly to the Shariah Tt advances the purpose of industrialization in the| country. Before parting with this case, however, we would like to obsene that we may take note of some realities of the industrial relations. Jt is said that while in the past the employer's behaviour was intolerable, the tables are now turned and the employee's behaviour towards the employer is most humiliating. The workers do not work to the extent they arc required to do. They thus take undue advantage of the power granted to them by these laws, which was granted only to keep a balance between them and their employer. It is said that the outside leadership is also to blame and more often than not its activities are meant to justify their leadership rather than help in the smooth working of the establishment or factory. It is for the Government now to consider and find out solu­ tion for these practical problems. They should frame and implement schemes to educate the workers and employers to develop the Islamic relationship of Muwakhat, or brotherhood between then, to respect and honour the dignity of one another and to refrain from humiliating each other. The process of accountability of employer and the employee both must be speeded up and whoever is found at fault, should be punished All attempts by either party at intimidating or influencing labour Courts and other organi/alions should be frustrated by timely action. Illegal lock-out and strikes may be visited with more serious punishments including the imposition of collective fines on the workers and severe fines on the employer. The possibility of eliminating outside leadership or atleast reducing u further may also be considered. Such leadership may have more potential fnr advancing its self-interest rather than advance the interest of the workers 6. The will of workers has been given by the various labour law-; full opportunity of expression. The appointment of bargaining agents shop stewards, works councils and the arrangement for participation of the worker in the managements of the factory guarantee the protection of their rights. Various incentives have been provided. If despite these measure^ their out-turn in the country is deficient and miserable, the object of these laws might be frustrated. There is no reason that the Pakistan worker who is said to be extremely efficient when working in foreign countries should be amiss in performing his duty as efficiently for the development of his homeland. The Government should organise a systematic plan of preaching and inculcating in them the Islamic values referred to above, 7. These labour laws are justified in Shariah. (TQM) Declared accordingly .

PLJ 1984 FSC 210 PLJ 1984 FSC 210 [Appellate Jurisdiction] Present : B. G. N. KAZI, J KARIM BUX-Appellam versus THE STATE—Respondent Criminal Appeal No. 69/1 of 1983, decided on 4-10-1983. (i) Offence of Zhta (Enforcement of Hadood) Ordinance (VH of 1979)

S. 12 and Pakistan Penal Code (XLV of 1860)-Ss. 377 & 511- Sooomy—Offence or—Evidence, appreciation of—Benefit of doubt- Evidence of interested witnesses — Enmity with complainant — Evidence not free from doubt—Evidence of victim not corroborated by medical evidence—Appellant already known to complainant and distantly related to him—P. W. interested witness and undoubtedly related to complainant -Testimony of admittedly interested wit­ nesses not directly connecting appellant with commission of alleged ofTence—Injuries around anus superficial and minor and anus not patulous—Statement of victim being full of contradictions, such witness not found trustworthy—Statement of complainant also recorded after delay of 14 days—Report of chemical examiner not believed—Conviction set aside by giving benefit of doubt—Appellant acquitted—(Benefit of doubt). [Pp. 213, 214, 215 & 21614, B, C, D, E, F, G. H, J,K,L& A' (ii) Limitation Act (IX of 1908)— -—S. 5—Appeal—Delay in filing of—Condonation—Sufficient cause for—Appeal time-barred by 146 days—Appellant in jail giving thumb impression on application for appeal but same sent late by jail authorities—Evidence on record not furnishing requisite corroboration for conviction of appellant for offence alleged to have been committed—Held : Delay in filing of appeal to be condoned in circumstances. [P. 216] M NLR 1981 Cr. (S C) 1 ref. (iii) Chemical Examiner- ——Report of—Record not showing securing oi' shalwar and shiri of victim by investigating officer nor any evidence as to receipt of items by chemical examiner—Held : In absence of evidence about securing of shalwar and shirt by investigating officer and chain of evidence regarding proper receipt of items by chemical examiner, report to have no value. [P. 216JA, (iv) Criminal Trial-

Victim — Testimony of — Contradictions in — Effect of— P. W. (victim of sodomy) giving contradictory statement—Version about commission of offence not supported by medical evidence— Held, In view of contradictions and inconsistencies, evidence of victim not to be (considered as) trust-worthy especially when his version about commission of offence not supported by medical evidence. [P. 2151/ Mr. Javaid Nawaz Choudhry, Advocate for Appellant. Mr. Muhammad Aslam Uns, Advocate for State. Dates of hearing : 27-9 ; 3 & 4-10-1983. JUDGMENT Karim Bux s/o Fateh Muhammad Gopang was tried by the Sessions Judge, Muzaffargarh on charges of kiduapping Kaleem Ullah s/o Faiz Bux a young boy aged 13/14 years in order that he may be subjected to un­ natural lust, an offence punishable under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, (here-in-after referred to as the Ordinance) and he was also tried on the charge of committing unnatural offence with the aforesaid boy an offence under section 377 P. P. C. He was convicted under section 12 of the Ordinance and sentenced to suffer R. I. for seven years, to pay a fine of Rs. l.OOO/- or in default to undergo further R. 1 for four months and to ten stripes of whipping. He also convicted him for offence of attempt of committing sodomy under section 377 read with section 511 P P. C. and sentenced him to suffer R. I. for two years and to pay a fine of Rs. 500/- or in default to suffer further R. I. for two months. The appellan has filed this appeal against the aforesaid convictions and sentences. 2, The prosecution case against the appellant briefly stated is as under. Kaleem Ullah minor son of complainant Faiz Bux was studying in 8th class in the Middle School Binda Ishaq wherein the complainant himself was also employed as teacher. Usually the father and son used to go to the school and came back home in village Mahal Khakhi on cycle belong­ ing to the father. However, on the date of the incident i e. on 6th June, 1981, Faiz Bux had to work over-time at the School and, therefore, told Kaleem Ullah to go home on foot. When Faiz Bux returned home in the evening of 6th June, 1981, he found the boy missing and started search for him, On the next day i.e. 7th June, he continued the search and made inquiries from his relatives at Noor Shah but in vain. In the evening of that day, however, Wali Muhammad, his neighbour, informed him that he bad seen the appellant Karim Bux and the boy Kaleem Ullah going to­gether near Basti Nai towards Jhandewali, in. the morning. The com­ plainant continued search for the boy and on 9th June Master Hafeez Ullah who also works as teacher in the Middle School Binda ishaq, in­ formed the complainant that be had seen bis sun with the appellant on 8tb June in the morning at River Chenab Pattau. Thus being more or less convinced that appellant had taken away his boy, he made an application to Superintendent Police, Muzaffargarh, through the Headmaster of his School which he personally took to Superintendent Police Muzaffargarh on 10-6-1981. The aforesaid Police Officer marked it to SHO Rohillanwali who on reading it asked him to take the same to Police Station Sbehar Sultan as the offence had taken place in the jurisdiction of that Police Station. In the meantime Mehar Allah Dad, SHO .Police Station Robillanwah recorded the complaint and got it signed by the complainant The same was then sent to P, S. Shehar Sultan as the application which was endorsed to SHO Rohillanwali by the Superintendent of Police, was re­ tained at the aforesaid Police Station. 3. The complainant was summoned to Shehar Sultan Police Station on 24-6-1981 and he was given a copy of the formal FIR registered at that Police Station, 4. On 27-6-1981 the boy Kaleem UUah came home atone and the complainant took him to Police Station Shehar Sultan on the same day. The Shalwar and Kami: which the boy was wearing at that time were secured by the Police under recovery memo. (Ex. P/C) and he was made to wear other clothes provided by his father. He was taken by a connable to Medical Officer, Shehar SuStan but as that functionary was not available. the boy was ultimately medically examined by Medical Offiwcr, Civil Hospital Alipur, 5. The boy had informed his father thtu the appellant on the pretext to giving him pigeons of which he was found took him to Basti Nai where they stayed for the night near wheat stacks, he was then taken to Bhutawala flasti where the appellant committed sodomy with him He was nest taken to Multan and made to stay in a hotel where he again was subjected to sodomy. They stayed at the hotel where the appellant got employment und the appellant committed sodomy with him every night. Kaleem Ullah however, slipped away on the evening of 26th June, 1981, and reached home next morning on 27th June, 1981. 6. S. I. Abdul Baig who was Incharge of Police Station Shehar Sultan after registration of the FIR, took-over investigating and recorded state­ ment of prosecution witnesses under section 161 Cr. P. C. On 27th June, 1981, he got Kaleem Ullah medically examined by Medical Officer, Civil Hospital Alipur, namely Dr. Muhammad Afzal. He had taken two anal swabs, which he sealed in a phial and handed over the same to constable for delivery to Chemical Examiner for detection of semen. 7. On the same date SI ABPp Baig arrested the appellant from Kallarwali and got him medically examined by Dr. Syed Muhammad Ramzan Shah. After completion of investigation he sent up the appellant for trial. 8. The appellant in his statement recorded under section 342 Cr. V. L denied all the allegations and took plea that he had been falsely involved in the case due to enmity as son of PW Wali Muhammad who had taken the appellant to Sargodha to work for him did not pay him proper wages for the same. He further stated that PW Kaleem Ullah was in the habit of leaving his house and loitering about and had left his house on the occasion himself and returned on his own. He further added that he had a fall from a palm tree and was injured and his left leg had been amputated by a doctor about 5/6 years before the incident. Be, therefore, walks on one foot with difficulty and with the support of stick, and therefore, he furthei pleaded that he could not possibly cover long distance on foot, as alleged by the prosecution. He examined witnesses Wahid Bakhsh and Muhammad Ramzan in his defence. 9. After bearing the arguments of the learned counsel tor the parties which were concluded on 4-10-1983 and after going through the record, it was found that the evidence against the appellant was of intererted wit nesses and in view of the enmity of the complainant alleged by the appel­ lant, the evidence against him was not free from doubt, specially as the version as given by the alleged victim namely, Kaleem Ullah was not cor roborated by the evidence of Dr. Muhammad Afzal, who had examined! him. As the Court time was over, the decision was announced by recording short order and the following are the reasons for the same : — Besides Faiz Bux complainant the prosecution Kaleem Ullah, the victim, and prosecution witnesses Wali Muhammad (PW-6,, Master Hafeez Ullah (PW-7) and Na/ar Hussain (PW-8). There was also evidence of Dr. Muhammad Afzal, who had examined the victim, Dr. Syed Ramzan Shah, who had examined the appellant. SI Abdul Baig, the Investigation Officer, and formal evidence of Police Constables Mumta/ Hussain, Rab Nawa and Zaffar Hussain. 10. There is no doubt about the tact that the appellant was already! known to complainant Faiz Bux who is his distant relative. It is also|8 apparent from the evidence of complainant himself that he is not at all well! disposed towards the appellant. The complainant Faiz Bux for obviousreaspns was even reluctant to admit that the P. W. Wali Muhammad son of Haji Qadir Bux of his village who had informed him in the evening thai he had seen Karim Bux taking away his son Kaleem Ullah was related to htm and in his cross-examination he stated that Wali Muhammad is resident of his village but he is not related to him. However, he reluctantly admitted that Mst. Nemat daughter of his uncle Khan Muhammad is the wife of Wali Muhammad (PW-6). Wali Muhammad (PW-6i admitted in his cross-exami­ nation that he is related to Faiz Bux, complainant, as Khan Muhammad uncle of Faiz Bux, is his father-in law. Again witness Wa!i Muhammad admitted that the appellant is distantly related to the complainant and. therefore, he did not suspect foul play when he saw Kaleem Ullah going with the appellant. The complainant in his deposition stated about the appellant as under :— "1 already knew that the accused is of bad character because iu connection with abduction of a woman be was detected but he had sworn falsely about bis innocence and then he was punished bv nature by a fall from a palm tree and the tree itself fell upon hiai as a result of which his leg was broken. The accused is now with one leg as the other leg has been chopped off. He had broken his leg approximately 8 or 10 years before the present occurrence The accused had general reputation of committing sodomy with the boys. I do not know if any sodomy case had earlier oeen registered against the accused or not". 11. With regard to the plea Of the appellant that lie was, not paid wages by the son of Wali Muhammad whom he had given a beating result­ ing in the enmity, the complainant Faiz Bux admitted in his cross-examina­ tion that Abdullah is son of Wali Muhammad but he denied that the case against the appellant had been registered due to enmity between him and Wait Muhammad. 12. Having observed the background of the relations of the complai­ nant Faiz Bux with the appellant, it may here be stated that the evidence against the appellant is mainly that of boy Kaleem Ullah the alleged victim about the actual commission of the offence, the only other evidence is that of Wali Muhammad and Hafeez Ullah who had seen the appellant with the boy at one time or the other. For reasons already given Wali Muhammad is an interested witness as he is undoubtedly related to Faiz Bux and the plea of the appellant is that the case has been filed against him at at bis instance. Wali Muhammad in his deposition stated that be had seen the appellant and Kaleem Uliah going near Bast Nai Wall. He has not given the exact date on which he saw the appellant with the boy and has himself admitted that since the appellant is distantly related to Faiz Bux he did not suspect any foul play. Master Hafeez Uliah (P. W.-7) who is admittedly colleague of complainant Faiz Bux stated that on 8-6-1981 he had seen the appellant and the boy going together towards river when he was returning from the house of his in-laws to his village. He has given his place of resi­ dence as village Shakar Bela, he stated that he was on leave and came back to the school on 9-6-1981, and on hearing about disappearance of the boy he has informed his father that he had seen the boy going with the appellant. 13. The testimony of these two persons who are admittedly interestcds UJwitnesses does not directly connect the appellant with ti.e commissiond jof the alleged offence. The evidence against the appellant, therefore,k Imainly consists of the evidence of Kaieem Ullah, the alleged victim. Atd the outset it may be stated that Kaleem Uilah according to his own version and version of prosecution returned home alone on 27-6-1981 after his disappearance on 6-6-1981 which means that his return was after a period of 20 days or so. According to Kaleem II!lah this oac legged person took him along Suraj Mukhi crops to Basti Nai on the promise that he would fetch pigeons from across the river. According to Kaleem Ullah the appellant did not commit sodomy with him during that night and the next day he was going with the appellant to his relatives when P. W. Wali Muhammad met them in the morning at the time of 'Azan' for morning prayer which was being given. From there the appellant took himn to Jandewali and reached Faizpur at noon time, after they acrossed river and reached Shaker Bela. That night too no sodomy was committed and in the morning at Pattan P. W. Hafeez Ullah saw them. They then acrossed the river on a boat and reached Bhutta Basti where the sister of the appel­ lant resides. They slept in the open ground outside and it is the allegation of the boy that the appellant committed sodomy with him that night. The evidence of Kaleem Ullah in some detail mentioned as it was plea of the appellant before the trial court that a person in his condition cannot cover long distances as alleged. However, the statement of Kaleem Ullah that later on be was taken to Multan where he remained with the appellant Jfor 15-20 days at a hotel where every night the appellant committed Jsodomy with him, is uot only un-corroborated by the evidence of Dr. jMuhammad Afzal but makes the version altogether absurd. According to JDr. Muhammad Afzal (P. W. 1.0) Kaieem Ullah was sent to him for examination and he issued a certificate on 27-6-1981 i.e. after 21 days of the alleged taking away of the hoy and he found only two injuries as under : — 1. An abrasion 1/4" long at 11'O Clock position of anus. 2, An abrasion 15" long at 6'O Clock position. 14. According to the Doctor the aforesaid injuries on the anus could be caused by rubbing a stone on the anus and the duration of the injuries . was only 2/3 days. It was further stated by the doctor that the injuries around the anus were superficial and minor and the anus was not patulous The aforesaid evidence indicates that Kaleem Ullah was not a habitual! catamite and in the opinion of the doctor penetration had not been com­ pleted but was if at ail attempted. 15. It is obvious from the judgment of the learned Sessions Judge, Mu/affargarh that it was due to the aforesaid medical evidence that he convicted the appellant for the attempt to commit un-natura! offence. However, even with regard to the attempt there was further opinion of the Dr. that injuries could have been caused by rubbing stone on the anus. If the evidence of the P. W, KaSeem Ullah, the alleged victim, is accepted about committing sodomy on hun dunng several nights, the same is not at all corroborated by the testimony of the doctor. Added to this, it is apparent from the evidence of the boy that he cannot be considered as truthful w itness. In the cross-examination his earlier statement before the police was used to contradict his statements in his deposition. Although he stated that he had mentioned before the police that he had informed the accused that he would accompany him after getting permission from hss father, the Court on referring to his statement under section 161. Cr. P. C found that he had not so stated. Again although he stated that he had mentioned before the police that the accused kept guard over him during the night, his assertion was found to be wrong. Many such contradictions were proved from the record which make it apparent that he had been addling to the earlier statement made by him. For instance his further staeraent that he had informed the police that the accused had asked him to call him as uncle, was found to be incorrect. Again, the details about his having mentioned to the police that he slept in the open outside the" house of the sister of the accused, was also not correct. He had also not mentioned in the statement made before the police that he removed Us. 10 from the shirt of the owner of the hotel, although before the Court in cross-examination h; stated that he had said so. In view of the aforesaid contradictions and inconsistencies the evidence of Kaleem Ullah cannot bei considered as trust-worthy, specially in view of the further circumstanced that his version about the commission of the offence is not supported by] the Medical evidence. 16. In view of the plea of the'appellant that he is implicated due to enmity, the obvious delay in lodging of the FIR could not be over-looked After the disappearance of the boy on 6-6-1981, the prosecution case is that Waii Muhammad (P. W. 6) informed the complainant about seeing the boy in company of the appellant on 7.6-1981 and similarly it is pro. secution case that P. W. Hafeez Ullab so informed him on 9-6-1981, An attempt was made to inform the police and an application (Exh. P/B.) was addressed to the Superintendent of Police, Muzaffargarh, dated 10-6-81 which does not mention that information had already been given to the Icomplainant by Wali Mahamnad and Hifeez Ullab about the boy being &|een in company of the appellant. Th; statement of the complainant KExh. P/A.) was recorded after a dshy of 14 days on 26-6-1981, for the first time. It is also observed that although the complainant, Faiz Bux has stated that SI Abdul Baig had secured the shalwar and shirt of the boy and had sealed the same for being sent to the Chemical Examiner, there is no mention about securing the clothes of the victim by the aforesaid witness, namely SI Abdul Baig nor is there any evidence as to how the aforesaid clothes were received by the Chemical Examiner. However, there is a mention in the deposition of Dr. Muhammad Afzal (P. W. 10) that the report of the Chemical Exanher, (Exh P IE.) showed that skalwar and shirt were stained with senen. In tne abiincs of evidence abjat the securing of the shalwar and shirt by the investigating officer and the chain of evidence regarding proper receipt of the items by the Chemical Examiner, report has no value. s. The judgment of the conviction was recorded on 24th October, 1982, and the instant appeal was received on 25th May, 1983, which shows that the appeal is time barred by 146 days. It is contended by Mr. Javaid Nawaz Chaudhry, the learned counsel for the appellant that the appellant was in jail and had given thumb impression on the application for appeal but had tieen sent late by the Jail authorities. However, for the reason already stated the occular evidence is not carroborateJ by ths medical evi­dence and, therefore, it does not furnish the requisite corroboratton for conviction for the offence alleged to have been committed by the appellant M In Bashir Ahmad

'. The State (a decision of the Supreme Court reported iu NLR 1981 (SC) Or. 1], under similar circumstances delay of 159 days, in filing jail appeal was condoned and leave to appeal was granted The delay in the filinj of the instant appeal is, therefore, condoned. The appeal is allowed and the conviction of the appellant Kariru Bux son of Patch \Iuhammmad Co pang on the two charges is hereby sei: aside ard he is given benefit of doubt and acquitted of charges. He should be released immedi­ ately if there is ? o other case pending against him, (Aq. By,) Appeal allowed

P L J 1984 Peshawar 1 [DB] P L J 1984 Peshawar 1 [DB] Present: ABDUL KAKIM KHAN KUNDI a ALLAH BAKHSH, JJ MUSLIM SHER Petitioner versus Msi, $UDRAT B1BI and Another—Respondents Writ Petition No. 673/80, decided on 20-12- 1983 (i) Dissolution of Muslim Marriages Act (VIII of 1939)— - - S.2 (iv) read with Family Courts Act (W.P, Act XXXV of 1964)—S.5— Marriage—Dissolution of—Marital obligations—Failure to perform—Effect of--Husband depositing part maintenance arrears in court before com­ pletion of 3 years but subsequent to institution of suit for dissolution of marriage—Held: Wife to be deemed to have failed to prove issue of non - performance of marital obligations on part of husband for requisite period. fP 4 ]A (ii) Disslution of Muslim Marriages Act (VIII of 1939)— -— S.2 (ix) read with Family Couris Act (W.P Act XXXV of IS64)--S,5— Marriage--Dissolution of— KhVila—Ground of--Held: K_huJ£ having been recognized qs vaiid ground for dissolution of marriage under Muslim Law, Judge to dissolve marriage on such ground on partial or total restoration of benefits received by wife as consideration of marriage. [P 4 JB. (iii)Family Courts Act (W.P. Act XXXV of 1964)—

S,5 read with Dissolution of Muslim Marriages Act. (VIII of 1939)—S.2 and Constitution of Pakistan, 1973--Art, 199—Dissolution of marriage— Decree for- -Challenge to in writ -jurisdiction--Jud{je Family Court dissolv­ ing marriage on additional ground of Khu!a--Held: Decree for dissolution of marriage if jtjaintain;»ble on any other ground, same not to be assailable in writ jurisoiction simply because of failure of Judge Family Court in determining benefits received by .wife as consideration of marriage and in ordering partial or total restoration thereof. [P. 4}C (iv)Constitution of Pakistan , 1973— Art. 199—-See: Family Courts Act (W.P. Act XXXV of 1964)—S.5. (v) Dissolution of Muslim Marriages Act (VIII. of 1939)— -- S.2--See: Family Courts Act (W.P. Act XXXV of 1964)—S.5. (vi)Family Coutrs Act (W.P.Act XXXV of 1964) — S.5—See: Dissolution of Muslim Marriages Act (VIII of 1939)—S.2 Mr, Muhammad Akhtar Khan, Advocate for Petitioner. Mr. Abdur Rahim, Advocate for Respondent No, 1. Dates of hearing: 364-10-1983. JUDGMENT Abdul Karim Khan Kundi, J— This writ petition arises in the circums­ tances that Muslim Sher petitioner (husband) institued a suit against Mst. Qudrat Bibi respondent No.l(wife) for the restitution of conjugal rights. On the other hand, wife instituted a counter suit for maintenance and dower in cash, ornaments and l/3rd share in a house. Both the suits were consolidated and were disposed of by a judgment and decree dated 29-4-1979. The trial Court found the wife and her minor child entitled to the maintenance at the rate of Rs.GO/- per month each from 1-7-1977 till 30-4-1979. The Court also granted a decree to the wife about the recovery of dower in cash for the sum of Rs. 1000/-. However, regarding issue of recovery of dower in the shape of ornaments and l/3rd share in the house, the Court held that the wife had since been delivered the ornaments and also possession of the house and if the items were later on usurped, the same will not be recoverable as part of dower through the proceedings in a Family Court. The Court also held that the alleged cruelty had not been proved by the wife at the trial. The Court granted a decree for restitution of conjugal rights to the husband subject to condition of the payment of cash dower of Rs. 1000/- and the past maintenance of Rs. 2640/-. 2. The husband went in appeal as against the said judgment and decree of the Family Court before the District Judge which was dismissed on 3-2-19SO. He had, however, meanwhile remitted the cash dower of Rs, 10QO/- to the wife by money order on 23-11-1979, receipt of which was duly acknowledged by the wife. Soon after on 17-2-1980 the wife instituted a suit for the dissolution of marriage on grounds of cruelty, non-maintenance, non-perforamnce of conjugal rights, protracted litigation and 'khui;. The husband had by then deposited the decretal amount of maintenance allowance and applied for execution of decree for conjugal rights. In his reply to the dissolution suit the husband denied the allegations levelled by the wife. Besides, he raised the pleas of estoppel and res judicata. There has, however, not been framed an issue on the poirvF ofres judicata by lh°. Family Court Judge. 3. In the dissolution suit the trial Court, in nutshell, held that the wife was entitled to the maintenance with effect from 1st of July, 1977 and 1. Since no- otln-i remcL, ,;\ ,va> i>i appeal or revision was available to the husband as against ihe decree of Dissolution of marriage passed against him, the husband filed this writ petition on grounds that in view of the decree lor restitution of conjugal rights passed against the wife and his hiivinp; paid the dower Oiul pass maintenance, no decree of dissolution of fnarri;ir;e could be passed agau.a! him He further alleged that the wife had n:j c,,use of action for instiiut'iv-; the suit for dissolution of marriage on the ^roun-J'j oi noii-mdinU'isa-^vs for two year;; and non-performance oi' ou-ijugai rights lor thre< j years as she nad uilegedly instituted her suit before the expiry of the statutory periods. He aliened that the wife was .ecraliV barred (rorr. ajjUnhnc. the pica of cruelty in her suit for dissolution ..:" marriage as no such ph-u was ev»>r advanced t>y her in his suit for rostit.:':',n of conjugal ri;;h>-, Tho !i>.-si,.i:>J also raised an objection to the c: = so^::o-i •.;' !:::;rr:ar f e i.m im- «roui:d o; 'hula '.vjthout, the determination , : ; : r^rorr. j r T he oorujfit j /.-ecjvcd Oj uk ,- '.vii'e. Last he raised the objection I',-.1 resrionde':! No. 2, the Prcsidin:', Officer of the Family Court, was a is~.A.-2 a:.d couid riot act as a Qazi ano as sucn the decree passed i,y her .,;& r.ui; a:v.1 void. This objection was, however, not pressed at the bar •..ner : confronted to wit; the y"rdie£ o.' the Federal Shariat Court that ; . tjOfir-ir the learned counsel for the parties at some length, •.••;- proceed to set;us the points rv.ised in ihe writ petition in the light of he factuai back-ground as detailed ahovf: S. As the outset a refen-m-- /-js r:::nji.- i-j 2?.', i.e. 1?S, a Full Bench authority of the Allahabad H; which wife was held not entitled io a decree for the dissolute n •..:' ;i',ir: - i.-;,.;;•• o,', ihe ground of non-maintenance in vicvj of a decree for the restit:,.';o;- f.f ,-onjuga! rights obtained by the husband while he was also willing to maintain the wife at h»s house. Further as 3 piea of cruelty raised bv the \'.?' ii-: a suit for the restitution of conjugal rights was decided b} u«c tour: a^arist her, the Court accordingly held that ,;lea of cruelty as sue!; co'e agitated in a subsequent suit for the dissolution of rnarriafji:. T, 1'ere th« nusband contends thai i;t«' ui!;jujjai rights y^hich, however., does not appear to be correct ;;-. duritifj the course of judgment, the trial Court concluded from the evKit''>ee tnai the alleged cruelty has not been proved by the wife on the basis u,( which sho could claim separate livelihood and maintenance. The wife rou;ci not t.hos possibly agitate the plea of cruelty as a ground in f. r sun for th? dissolution of rnarnaj^e in the absence of any subsequent instance of cruelty. 8. As far mainienoiu 1 !- it stands concluded that the wife has been iivinij Hpart from the husband since 1-7-1377, duly entitled to the maintenance fin account of nori-p,-iynn-nl of prompt dower which has only been paid on or after 23-11-1979, after the expiry of a period of two years. Thus the husband's failure to maintain the wife for two years before the institution of suit incurred a rijht to the wife to obtain a decree of dissolution of S«;e PL,! !98:i FSf ! . marriage on the ground °f non-maintenance under section 2(ii) of the Dis-solution of Marriages Act, 1939, 9, Husband was granted a decree for restitution of conjugal rights subject to condition of payment of prompt dower and past maintenance. The restitution decree was thus executable only on the fulfilment of the conditions and before that the wife was entitled to live apart from the husband and to refuse marital obligations to him. The past maintenance arrears were deposited in Court on 26-3-1980 subsequent to the institution of the dissolution of suit. However, a period of three years counted with effect from 1st of July, 1977 shall be completed on 30-6-1980 and as such the wife shall be deemed to have failed to pro,-e the issue of non-performance of marital obligations on the part of husband for the requisite period. The contrary finding of the Family Court on the issue appears to be based on misreading of evidence liable to be declared unlawful. 10, 'Khuia' has been recognized as a valid ground for the dissolution of marriage under the Muslims Lav/. Judge may order the dissolution of marriage on the sole ground of 'khula' on partial or total restoration of benefits received by the wife as consideration of marriage. Instantly the Family Court did not advert to the determination and partial or total return of the benefits received by the wife while simultaneously granting a decree for the dissolution of marriage inter alia also on the ground of 'khula'. 11. 1982 C.L.C. 2295 was referred, where plaintiff had sought the repudiation of her marriage by the exercise of option of puberty. However, the Family Court had given a decision that since the marriage took place during the plaintiff's minority, the marriage was illegal and void. Anyhow the decree as such challenged in the High Court by writ was upheld under the observations that the judgment read as a whole rendered the wife entitled to a decree for dissolution of marriage and if there has been ;;iven an erroneous decision by the Judge Family Court, on one respect, it will be wrong to set-aside the whole judgment and decree in exercise of writ jurisdiction. Reference was made to "Muhammad Hussajn Munir v. Sikandar and others" (PLJ 1974 SC 60) wherein it was laid down, "it is well settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it carne to an erroneous decision on a question of fact or even of law." It was contended that it is not the petitioner's case that the Family Court has not the jurisdiction in the matter, and if there was any error in the judgment of the Family Court in some respect, the same will not furnish a valid basis for judicial review. 12. There was made a reference to NLIi 1982 AC 623. It was an Intra Court Appeal. Wife had soupht dissolution of marriage on grounds of nonmaintenance, cruelty and 'khuia'. The Family Court decided issues of cruelty and 'khuia' against her wTTTle on issue of non-mainteltince, the Court held that the husband had failed to maintain her for a period of two years and consequently, granted her a decree for dissolution of marriage. Husband filed a writ petition which was heard by a Single Judrje who dismissed the writ petition. An Inlra Court Appeal had also failed. It thus comes to that if a decree for dissolution of marriage can be maintained on any one ground, in the present case on the ground of non-maintenance, the same will not be assailable in writ jurisdiction simply because that the Judge Family Court failed to determine the benefits received by the wife as consideration of marriage and to order partial or total restoration thereof in case of dissolution of marriage on the additional ground of 'khula'. 13. In view of the aforegoing discussion, this writ petition is dismissed <vith no order as to costs. (TQM) Petition dismissed.

P L J P L J Peshawar 5 (D.I. Khan Circuit Bench) Present; NAZIR AHMAD BHATTI, J Qureshi NOOR HUSSAIN and 7 Others—Petitioners versus GHOI.AM JAN art! 5 Others---Respondents Civil Revision No. 32-D/I979, decided on 6-12-1983. (i) Limitation Act (IX of 1908)-

S.5 & Art. 120 of First Schedule-Gift—Challenge to—Suit for declaration — Limitation — Bar of--Plain tiffs instituting suit for declaration within 6 years of date of knowledge of alleged fraud--Held: Suit to be within time. [P 7 ]B (ii) Limitation Act (IX of 1908)-- — Arts.95 & 120—-Transaction—Challenge to—Limitation—Period for-—Party to transaction himself not challenging same on ground of fraud etc^— Held: Gift mutation in case having been challenged by successors-ininterest. of alleged donor. Art. 120 and riot \rt. 95 of Limitation Act to be applicable. [P^<-7]A PLD 1971 Kar. 250 & 1973 SCMR 248 ref. Qureshi Abdur Razaq, Advocate for Petitioners. Khwaja Muhammad Khars. Advocate for Respondents. Date of hearing: 6-12-1983, JUDGMENT Ghulam Jan and ins minor brothers, respondents No. 1 to 3 herein, had instituted a suit against Qureshi Noor Hussain and his two sons, petitioners herein, for declaration in. the Court of Civil Judge, Lakki Marwat for; (a) a declaration that they and defendants 4 to 6 in the suit were ownsrs in possession of the suit land and gift mutation No. 19600 attested on '-1-19G4 was fraudulent, wrong and illegal and that gift mutation No. 209"9 attested on 30-11-1372 by petitioner No. 1 in favour of petitioners 2 and 3 herein was also void, ineffective and liable to cancellation; and (b) for possession if same was not proved. It was mentioned by the plaintiffs in their plaint that the suit land belonged to their predecessor Braim Khan wl,o died in 1355, that the petitioner No. 1 had developed relationship with their preoecessor ana rot the gift mutation No. 19500 attested in his favour fraudulently v/hereas the donor neither appeared at the time of attestation 1. Whether thf ijinnuiff and defendant; 4 t-"< 6 are owners in possession of the futt land and mutation No, 19600 attested on 9-1-1964 and mutation No. 20939 attested oh 30-1.1-1972 are In-effective on the rights of !fie plsinttff? OH' 2. Whether Uie plaintiff's ;,re estopped to institute the suit? 3. Whether the sin? is within time 9 4. Whether the defendant Mo. 1 has got. nn aequitahle charge if, so, what is oharjjc nmount? 5. Whether the trHnsrietion amounts to 'Hibbah BiifAwiz' if its effect? 6. Whether th<; suit is incom.petent in the present form'- 1 1. Whether thers has bfs>n a «a!iad pift under the law in favour of defendant No. I? 8. Pursuant to he remand order, separately discussed as i/nder: - thf issues reproduced above are 2. After recording the evideneo of the p«rti< Lakki decided issues No. 1 and' 3 in favour remaining issues against the petitioners hercir 23-1-197? and decreed the suit u, favour of ?.h by the petitioners m\ t'nv. Court i:--: AvidtliiV.-i! Lakki, the case was rt-manded bac.i; to the tnai 17-11-1977 lor discussing the !:;ki:<-«~ separately again gave th« same findings or. Use issues se; the suit of the plaintiffs vide in demerit drtjed again preferred an appeal !;i the Court oi' tear which was dismissed vido judgment dated 2S-" revision petition. 3. The only point raised in the revision petition H.nd on v»hich it was admitted for heari^n, was that «:rn: Seamed toiver Courts had by-passed the point' of limitation in deciding ttie> siji? ;<rui the appeal. The }".»rne«j counsel for the petitioners had contender: fh,;sl the suit for the purposes of limitation was covered by Article 95 of 1h<; First Schedule to the Limitation Act, 1908, and the suit h«vini.;' ixc-;: i'iicd un 29-7-1976 w»as time-barrio. His contention was that the pimittiffs applied for obtaining copy of gift iiutatio!) No. 19600 on 30-6-1972 and- obtained copy of jupinbondi of the suit lend on 1-7-1972. Thev instituted the suit on 2B-7-19T5TTh;7t""they had knowledge of the said gift mutation atieast on 30-i»-!972 and having failed to come to the Court within 3 years as provided under Article "5, their suit was time-barred. However, this contention of the learned counsel for the peti­ tioners is without any force for tiio reason that Articie 95 of the First Schedule to the Limitation Act, 1»03 would only apply when a party to the transaction himself challenges the -;an'e on the ground of fraud or other ground, whereas the said f;ift mutation was challenged by the succes&ors-in- [Sic] -interest of the donor who allegedly got the mutation No, 19600 attested. I This mutation was not challenged by the party to it but by his successors-in -interest. As such Article 95 did not apply end on the contrary Article 120 was applicable to the case. In support of this contention the cases of PhlooraaJ Motiram v. Abdul Quddus Behari and 8 others (PLD 1971 Karachi 250) and Fatahuddin v, Zarshad and another {1973 SCM __.. 248) may be cited. Plaintiffs in the suit came to Know of the alleged fraud on 30-6-1972 and they instituted the suit for a declaration within 6 years of the date of such knowledge as provided under Article 120 of the First Schedule to the Limitation Act. The suit was, therefore, within time. Finding no merit in 1 this revision petition, i would dismiss it with no order as to costs. (TQM) Petition dismissed,.

P L J P L J 7 Present: S. USMAN AL ! SHAH, ACJ Sardar AL! KB AN-—Petitioner MUHAMMAD RAUF and 4 Others—Respondents Civil Revision No. 291/79, decided or, 26-10-1983, (i) N.W.F.P. Pre-emption Act {XIV of 1950}- — S.5(c) — Agricultural land purchased for residence—Exemption from pre­ emption—Suit land situated in vicinity of village not shown to be unfit for residential purposes—Held: Common trend of society being to build houses in agricultural lands, suit land to be obviously fit for construc­ tion. [P 9 JB _ (ii) Co-sharer— — Rights of—Joint property — Ownership of—Held: Every co-sharer being owner of every inch of joint propertynone of co-sharers to claim exclusive ownership to any portion of joint land unless partitioned— Stranger purchasing specific portion in joint !and from one co-sharer without consent of others—Held: All co-sharers being owners of such portion, no structure to be raised by stranger upon such specific portion—-N.W.F.P. Pre-emption Act (XIV of 1950)—-8s. 4 & 12. [P. 9]A (iii)Joint Property —See: Co-sharer (iv) N.W.F.P. Pre-emption Act (XIV of 1350) — ss. 4 a 12--See: Co-sharer. Mian Ii. Yourias Shah, Advocate for Petitioner. Mr. Saadatyllah Khan,Advocate for Respondent. Date of hearing; 7-!)-i93;i. JUDGMENT The dispute ,between the parties in this revision application relates to land measurmj; 5 kanals situate in village Garon Ghar Khel. Saioor t>.;;ih was its owner. He sold "the suit land to respondents Nos. 1 to •» herein (or an ostensible consideration of /ts.3000/- through registered sale deed dated 25-10-1S76. This sale was challenged by the petitioner herein through pre­ emption suit. He alleged that Khan Ma look respondent No. 5 herein, father of respondents Nos I to 4, purchased the suit land in the ;u;;m,'s oi hi,-, said sons in order- to defeat his right of preemption. The respondents resisted the suit and the plea taken by them was that they have purchased the S'lit land for residential purposes, therefore, they are oxmpf from preemption under section 5(o) of the Preemption Act. Upon the pleadings of the parties, the learned trial Jud^e framed various issues and recording their evidence thereupon he decreed the suit in favour petitioner herein, vide his judgment dated 28-4-1979 by winch the res.pnndens were aggrieved, therefore, they filed an appeal in the District CYairt. i'he appeal was heard by a learned Addl: District Judjje who set aside the judgment of the learned trial Judge and allowing the appeal dismissed the suit of the petitioner herein, vide his judgment dated 13-6-1979. Hence this revision application. 1 have heard the learned counsel for the parties, ;toih j through the evidence on record and -persuod the rival judgments oi the twn Courts below. The learned trial Judge held that the respomJens are the residents of village Biland Kala and as the suit land is situate in village Garori Char Khel, they cannot claim exemption from preemption and as otherwise he found the petitioner in possession of superior right of preemption, he decreed the suit in his favour. In appeal, the learned Acidl: District Judge pointed out that respondent Khan Malook has two wives. He owned two houses, one in village Garori Char Khel and the other in village Biland Kala and that one wife is living in the house at village Garori Char Khel and the other in the house at Biland Kala. He also pointed out that respon­ dent Khan Malook has got children from 'his two wives arid two of ills sons are married. In the opinion of the learned Add!-. District ,'ud;;e, tile suit land was purchased for residential purposes by the respondents. On my part t'hnve given careful consideration to the question whether the respon­ dents have, as a matter of fact, purchased the suit land for the purpose of constructing houses thereupon. I have come to the conclusion that the learned Addi, "District Jud^e has rightly answered this question in the affirmative. 1 do not see any reason to interfere with his ir.ipuftiiPd finding in this behalf. The suit land is one compact parcel of land, it measure 5 Kanals and as it has been purhcased by the four respondents/brothers, every brother will, therefore, f(et the share of one Kanal arid 5 maHas_. According to the preemption lav;, each one of them is entitled to purchase the land to that extent for the purpose of constructing house thereupon for self-residence and no preemption suit would lie against any one of therj. The learned counsel for the petitioner, however, contended that respondents Nos. 1-4 are not the residents of village Garori Char Khel. He referred h, this behalf to the" impugned sale deed (Ex. P.'.V. 1/4) to show that the respondents have been mentioned in the sale deed as residents of vil'v.i: Biland K.iia. 1 he ieai led counsel, therefore. ur ;jed that as the respondents ?'",. .'. . ,.,,. ,uu '.ho . e.-^dents of village Goran Char Khel, thev -jjiinol claim exemption fron. F r<" mplinn with respect to the suit land. According to hiiii, the suit land was purchased ip. the father of respondents Nos. 1-4 for hi-- ov.n benefit and in the impiiLMied sole deeu, he showed the names of hir; sons/respondents Nos, 1-4 as jJainami^ This contention was also raised before the learned Add: District Judge"~bul ho repelled it. The learned Addl. District Judge referred in this behalf to an authority reported in P.L.J.. 1974 Peshawer 98 in which It is held that. non-resident is also entitled to exemption with respect to the 'and purchased by him for the purpose of residence, ! observe that even if it can be said that this authority has not laid down i good law in a ease of this nature, yet 1 am satisfied that respondents Hos, J-4 are residing in village Gorari Char Kf'jel. A reference in this behalf may be made to the plaint in which the petitioner has given village Garori Char Khel as the addresses of respondents Nos 1-4, therefore, ns according to the petitioner, respondents Nos, 1-4 are residing in village Garori Ghsr Khel, the petitioner gave thair addresses in the plaint of that village. Even otherwise, respondents Nos. 1-4 can be said to have purchased the suit land for residential purposes. It is not denied that the father of respondents Nos, 1-4 is residing in village Garori Ghar Khel. There should, therefore, be no question against the respondents that they in the rifrht of their father will naturally be interested in taking up their permanent abodes in village Garori Char Khel. The learned counsel for the petitioner nc ! vt contended that the suit, land is situate in the same Kathn in which his client is co-sharer and according to him, the suit hind cannot be purchased for the purpose of construction of house,? without tht> permission of other co-sharers in the same Kntha. in support of his contention, he referred to an authority reported~Tn~~P. L. D. 1983 Peshawar- 197 in the case of Itebibur Retiaan and another v, Faqir Muhammad, With respect,, the learned counsei seems to have misconceived the ratio of that authority which speaks of co-sharership in the joint land and it is not relevant to the present ease in which the petitioner is co-sharer in the same Kafhs in which the suit land is situate. Apparently, the learned counsel has equated or confused co-sharship in the joint sand with the co-shmrship in the same Katha._ What has been laid In the above authority is that without the consenfoTTccPsharers, a stranger cannot purchase from any co-sharer any portion in the joint land for the construction of house. In the joint property, H is a settled law that every co-sharer is deemed owner of every inch and unless the joint property is partitioned, no co-sharer can lay claim of exclusive owenership to any portion of the joint land, therefore, should a stranger purchase aspecific portion in the joint land from a co-sharer without the consent of other co-sharers, he will not be entitled to raise structures upon the said specific portion, as legally all co-sharers are owners of the said portion. But this difficulty does not exist in the case of co-sharership in the same Katha in which every owner owns land independently and to the exclusion oT~none. In view of this, there will, therefore, be no embargo upon a vendee to purchase land in the said Katha with the permission of other co-sharers in the said Katha. This is becauie owners in the same Kath£ own Land indivi­ dually to the exclusion of none, therefore, an owner in the same Katha cannot claim co-sharership in the land sold by its owner. The learned counsel lastly contended that as the suit land is agricultural land, according to him, it has not been purchased for the purpose of construction of 1 houses, I do not see any substance in this contention, i observe that in order to combat over-population in this age, it is common trend in the society to build houses in the agricultural lands and now villages, towns and colonies etc. built in the agricultural land have emerged. The suit land is in the vicinity of Garori Char Khel, therefore, it is obvious that it is fit for construction, the moreso as nothing to the contrary was placed on the record on behalf of the petitioner that it is not fit for ret- ; Eential purposes. No other point was urged and as 1 do not see ny force in this revision application, it is dismissed with no order as to costs, (TQM)

Petition disntsssed.

P L J P L J 10 (Abbotabad Circuit Bench) Present; .INAYAT ELAH! KHAN, J Mir ALAM KHAN— -Petitioner Versus MUHAMMAO J! alias ASLAM and Another---Respondenis Civil Revision No. 292/77, decided on 13-4-1983, N.W.F.P. Pre-emption Act (XIV of 1950)—

Ss, 4 & 12--Pre-emption---R:ght of—Persons entitled to— Jointness of Khntfl fictionally broken and area sold to vendee given separate number — Held: Property no moro remaining joint, such vendee not to be deemed to be co-sharer in JKJiata in question and findings to contrary not to be maintainable. [P IT, B 4 C Mr. M, H. Lughmani, Advocate for Petitioner. Mr. Satoh Din Ahmed Sultan, Advocate for Respondent No. 1. Date of hearing; 6-4-1983. JO.OGMEKT Agricultural land measuring 19 jta_^a]s 7 m arias comprising of khasra numbers 87,88 and 89 bearing "Khj^tji mJcnber 48~slfuate in village Kot Bhalla, Tehsil Mansehra was sold by Mohammad Naseer Khan in favour of .Mohammad Ji ajias Aslam (respondent No.l) .vide mutation No, 907 attested on 22-8-1973. The sale was preempted by Mir Alam Khan (petitioner) by filing Suit No. 454/1 of 1974. The rival preempt or Sher Zaroari (respondent No. 2) also preempted the aforesaid sale by suit No. 471/1 of 1974. Both the suits were consolidated and tried together, Mir Alam Khan (petitioner) preempted the sale on the ground of contiguity whereas Sher 'laman (respondent No. 2) claimed co-sharership in the suit j, 48. Tbc teamed counsel for t'ne petitioner contended that Mo'rmmmad k>tkc<,t Khan besrsg the sole owner 01 the KJ}la in question fiad effected sale of specified area measuring 4 kanajb 2 nutrias out of khasra No. !C<6 us favour of SN-r 7, men (respondenl No. 2) by making a Tatinia of the lan oftis? khj.sra Mo. in question measuring 7 kanals 1 roerlfl retained by tfse owner £•,-> given a septate khasra No, 106/2. This would show that ukjoin^es" -^f -'k: khen was nouos.aily broken and therefort% Shsr Zisra-m could mv: viaim !.o be a ee-owncr if! the jthats i?> question, It Is obvioy;> that Sher Zaman has purchased 4 kanals STrnarias oul of khasr-'i No, 106 and «»'>'} f;iv«in fJOSKtssiao of the specified area which was separ'Jttd frost the r«r-;,t of the o.fea of kSiaara No. 106 by making e Tatinia at the spw, Tfy him w?sk also given a separate kNisra number i.e., 106/1 and the re«;.-ii!!3ng area was allotted khasra No, "106/2 which was rett«lnK! for himself by the vendor, It is thu? clear~that the area purchased by Sher Zaraan r,t''x>c separated and he no longer remained joint owner with Mohammed Ksseer Khan in the khata in question. In this view of ifce Bi.ol.tp-r it cennot bt u yaw! that by dint oT the aforesaid purchase Sher Zs«an had hecosne a co-eharcr in the kjtata. Both the learned court below t^e^«fi,^r^:, wfie not justified to up-hoIO the superior right of pre-emption of Sher 2am.'jn on the basis of his co~sharetship in jkhajta No. 48, In Sber Singh vb. K»nd lal (A!U 1947 Lahore ,184) it was halii that: - The terra 'cosharsr is not deflrwd snyw'TJre :n the Act, but its meaning is quite clear. The word 'cciGharei"' postulatc-Ji th«t there are some otfu-r perr-oRR as w«l) «rho h-'»ve « right in the property. The very conception of i r -'int property' a; yt»«i.i in cl(b) atnwe prfaxspposes that it also bfiongs to a person or persons other than the v«ndo-:.. All the persons who so own a property among themselves arc the oosharers of each other. Their relaiionisaip is mutual. It would be a coutrdiction in terms if A is the uoshursr o. r 8, but 6 is not !!:,.,- cosnarer of A. As laic! down in 5 Lah. 2381. t« word 'cosharcr' "signifies persons owning a share or share in t.iie wh-'>3«} o r the property or properties of which another shart» or otis.:.- sftjifes »vpe the subject of sa!«i™. In other words, tat: wurd 'cosnsyr t,<>.noi'es a person who holds in existing joint proprietary infer-Jii. >',etii:--r 5Uoo5uie or- limited, in an undivided property. The ib no. «-f«5 in this c«s>e was, the sole property of the vendor in which the p«;:stili' ns'.'i no share whatsoever". But in the case in hand it is obvious that Mohammad Naseer Khan was not a co-sharer with others in jthata No. 48 and being the sole owner has sold specific portion of khasra number 106 which was separated and given a separate number and ffTus it can be said that the jointness of the khata was notionally broken and respondent No, 2 did not become a co-sharer with the vendor in khata No. 48, The learned counsel for respondent No. 2 also relied on Safd~Kariai Shah v. Taj Mohammad (PLJ 1975 SC II), in which the decision of the Peshawar High Court in Mohammad Yousaf v. Sikandar (PLD 1970 Peshawar 160} was approved wherein it was held that:- "Thus a holding of land which comprises in it a number of fields bearing different jkhasra numbers remains one property and not that it has as many propertles~as there are khasra_ numbers". It was also held that:- "The fact of the matter is that although a field or a parcel of land is assigned a particular number, it is not as a result of the division of the property, but is only for convenience of purpose to be achieved in the matter of survey or the crop inspection". The cited case is of no help to the learned counsel for the reason that in the case in hand the sold khasra number 106 was divided and the area " sold in favour of respondent No, 2 was also given a separate number. The property no more remained joint and therefore, respondent No. 2 could not be deemed to be a co-sharer in the khata in question. The distinguishing feature being that Mohammad Naseer Khan being the sole owner of the khata had separated the share sold in favour of respondent No. 2 who was also put in possession thereof and thus it is obvious that respondent No. 2 could not longer claim partition of the joint property. 5. For the aforesaid reasons the findings of both the learned courts below holding respondent No. 2 as a co-sharer in the Jkhata are not maintain­ able. Mir Alam Khan (petitioner) being a contiguous owner is, therefore, granted the decree prayed for on payment of Rs.7,053.84. The preemption money, if not already deposited in the trial Court shall be deposited within a period of one month failing which the petitioner's suit shall stand dismissed. The parties to bear their own costs. (TQM) Petition accepted,

PLJ 1984 Peshawar 12 PLJ 1984 Peshawar 12 Present: FAI2 MUHAMMAD KHAN, 3 ROSHAN KHAN (deceased) represented by legal heirs---Petitioners versus Haji SAID KHAN and Another Respondents Civil Revision No. 439/80, decided on 21-12-1983. (i) Civil Procedure Code (V of 1908)— — S.115—Raision—New plea—Revising of—Plea never previously raised before Sower courts and no issue framed or evidence led in such respect —Held: Plea, determination of which required evidence, not to be allowed to be raised for first time in High Court in revision. [P JA & B (ii) Land Revenue Act (W.P. Act XVII of 1967)— -— S.42—Periodical records relating to land-owners— procedure for making of--Held: Patwari halqa being under obligation to enter in Roznamcha Waqiati and mutation register reports made to him about acquisition 6T right in estate, promises made relating to such acquisitions not to be entered in record--Held further; There being no acquisition unless coming into force of concluded contract between parties, acquisition to precede report or its entry in revenue record. [P 1C Mi) N.W.F.P, Pre-emption Act (S!V of 1950)— — Ss. 4 & 12 and Land Reforms Regulation (MLR 115), 1972--Para 25(2)(d) Pre-emption—Right of—Tenancy of respondent starting about one month after completion of sale transaction—Held; Respondent having no right to pre-empt land on day when sale transaction completed, suit of peti­ tioner (co-sharer in suit Khasra) to merit to be decreed, [P JD Mr. Z. Hahfooz Khan, Advocate for Petitioner Mr. Attaullah Khan, Advocate for Respondent Date of hearing: 10-12-1983. JUDGMENT The suit out of which this revision petition arises was instituted by Roshan Khan against Haji Said Khan for a decree for possession, by pre­ emption, of 18/32 share out of khasra No. 1227, situated in Garhi Faizullah, Tehsil Nowshera. The pre-emptoF alleged in the plaint that the suit land was sold by the vendors in favour of Haji Said Khan for a sale consideration of Rs. 15.000/- and since he possessed all the qualifications mentioned in section 12 of the Pre-emption Act, which the vendee did not possess, he had a right to pre-empt the sale. The pre-emptor died during the pendency of the suit and his legal representatives were thus brought on record, 2. The vendee-defendant Haji Said Khan, despite service, did not agpear in Court and was, therefore, plaeed 6x_£arte_^ On 15/3/1977, however, one Noor Muhammad applied to the trial Court that he having obtained from the Court of Civil Judge, Nowshera a decree in his favour on 26-10-1976 in respect of the suit land was a necessary party to the suit and may, therefore, be impleaded as defendant. This application was contested by the pre-emptor by denying the facts mentioned therein. The learned trial Judge, however, while allowing the application of Noor Muhammad impleaded him as defendant in the suit. He alone contested the suit on many grounds, The learned trial Judge put the parties to the following issues: 1. Whether the plaintiff has a cause of action? 2. Whether the plaintiff is estopped to bring the present suit? 3. Whether p'laintiff has wilfully forfeited his right of pre-emption? 4. Whether Noor Muhammad defendant No. 2 has improved the suit land, if so, to what extent and with what effect? 5, Whether plaintiff has got a superior right of prt—emr>ti 6. WNfithe 1 - the defendant Me. 2 is tilling t}K s disputed land and got, » superior rigiru o! pre-en)ptit>o? 3. After recording such evidence as th-e parties wished to produce and alter hearing the arguments of the learned counsel for the parties, the learned trial Judge, by discussing issue Nos. 1,5 and 6 together, held that the pre-emptors/plaintiffs had no cause of action and their qualification to pre-empt was not superior to that of Moor Muhammad defendant No, 2, who was a tenant of the suit land, issue Nos. 2 to 4 were decided by the learned trial Judge against the defendant No. 2, who could not bring cogent evidence on the record to support the pleas raised by him, in the result, the learned trial Judge, vide his judgment and decree dated 29-5-1980, dismissed the suit instituted by pre-emptors/plaintiffs, leaving the; parties to bear their own costs. 4. t..c pre-emptors/plajniiffs went up in appeal and the learned Addi­ tional District Judge, agreeing with the finding of the learned trial Judge on issue Nos, 1,5 ana 6 vjde his judgment and decree dated 9-9-3980, dismissed the appeal, leaving the parties to bear their own costs 5. Not saisfied with the judgment ami thi decree of the learned two Courts beiow, the pre-emptors-plaintiffs> have fited this revisin petition, 6. 1,, Mahfooz Khar., Advocate appeared on behalf of the petitioner and Mr. Attullah Khan Advocate appeared on behalf of respondent No. 2. They were heard and the record of the case pursued with their assistance 7. Tnc first contention ot the learned counsel for the petitioner:; wa that the professed transfer ol the suit Sand in favour of Noor Muhammad (respondent No. 2} was nothing but a sham transaction and that, the suit k: which decree was obtained Dy turn against Haji Said Khan (respondent Nc. 1) was collusive and fictitious. The learned counsel suggested that for uh-a reason the said transfer and tne decree may be ignored. This contenticr. was, however, neither raised before the learned trial Judge, nor before the learned lower appellate Court, nor was this piea specifically taken I.'-- the petitioners in the application whereb'y they contested the eiaini of Ncx>." Muhammad (respondent No. 2} ior becoming party to the suit. No issue.- or : this point was framed by the learned trial Judge nor was any evidence r this respect led by the parties before the learned trial Judge, except that in her statement Mst. Shafa «lan stated tnat the purchase of the suit land by Hoor Muhammed~was fictitious. Not only that, but the pre-emp!or iRosham Khan) had himseif on 6-1-1977 made an application to the Court, whereir. he stated that the first vendee was transferring the suit land in favour of Noor Muhammad and that he may be restained from doing so. A notice of this application wab aiso sent to the other side but it appears not to have been pressed inter. In such circumstances, the learned counsel for th-" petitioners could not Of permitted to raise for the first time at this stage, thip piea, tor its determination required evidence of the parties which ni this stage conks riot Di.- permittee 10 be adduced. H. The itiuMi-o counsel tor the petitioners next contended that th<; oetitioners being co-shwrer id the suit khasra had a superior right of pre-emption over Haji Said Khan vendee, who did not possess that qualifi­ cation. The learned counsel further contended that on the same basis the petitioners had a superior right even against Noor Muhammad respondent, who was not the tenant of the ssrit land on the date when the transaction of sale in favour of Haji Said Khan respondent was completed. Elaborating his arguments further, the learned counsel contended that the pre-empted sale had been complet«d earlier than the day it was reported to patwari halqa, who on its basis entered on 29-3-1876 sale mutation No, 1195 in favour of Haji Said Khan, The learned counsel argued that when on 26-4-1976 the statement of the ladies/vendors whs? recorded they confirmed having sold the suit: land in favour of Hap Said Khan vendee, who had earlier reported the pale to patwari halqa on 29-3-1976. According to the learned counst-i the entries made in column Nos, 12 and 14 of the sale mutation, in absence of other evidence on the record to the contrary, were sufficient to establish that the transaction of sale had been completed between the vendors snd Haji Said Khan vendee before 29-3-1976, On that date, the learned counsel for the petitioners urged. Noor Muhammad respondent was not the tenant of the suit land- even if entries made in ^J123 r agy^aw? - ^ with respect to his tenancy were regarded to be correct, TKTcouIdT at the" most, be regarded as tenant from the date when crop inspection of rabi 1976 was made by patwari halqa on 26-4-76, The learned counsel argued that since Noor Muhammad was not the tenant of the suit land on the date of comloletion of sale transaction in favour of Haji Said Khan, he could not have the first right of pre-emption In respect of that sale, nor could he on that basis re-M=t the claim of the pre-emptor who was a co-sharer in the suit kjl5£ra_ on that date. The learned counsel for the petitioners also contendecTTFfalTthe learned Sower appellate Court was wrong in holding the view that Noor Muhammad had to be taken to be in possession of the suit land, as tenant thereof, from the day when the wheat crop was sown by him. He maintained that this view of the learned lower appellate Court ws contrary to the law lad down by the superior Courts. He urged, therefore, that the decisions of the two Courts below, arrived at as they were by mis-construing the Saw, were no! sustainable, in support, of his arguments the learned counsel cited PU 1982 SC 86, P.L.D. 1956 S.C. 309, P.L.D. 1961 (W.P.) Bughdad-ul-Jadid 3 PLJ 1974 Peshawar 126 and PLD 1976 Rev. 30, 9. The learned counsel for the respondents, however, argued that the date on which the sale mutation was entered by patwari halqa was noi material for the purpose of judging the merits of the respective qualifications possessed by the pre-emptor and Noor Muhammad respondent. He contended that in that respect the date of attestation of sale mutation was material, He also contended that according to the entries made in Khasra girdawari Noor Muhammad respondent was in possession of the suit land as a tenant prior to the date of attestation of sale mutation, which fact was certified by patwari halqa who made on 26-4-1976 crop inspection. The learned counsel argued that the sale of the suit land in favour of Haji Said Khan stood completed on the date of attestation of sale mutation, and not before. He argued further that if for any reason the date of attestation of sale mutation was not to be regarded as the date on which the pre-empted sale stood completed then such sale would be deemed to have been completed at the earliest, on the day when the satatement of the ladies/vendors was recorded by girdawar circle. He submitted that from the perusal of the sale mutation it was clear tht the statement of the ladies/vendors was recorded by girdawar circle on 26-4-76. It was thus evident that the sale transaction ! n favour of Haji Said Khan stood completed on 26-4-1976, and not before. That was also the dste on which entry in respect of the possession of Noor Muhammad respondent as tenant of the suit land was made by patwari halqa in Khasra girdawar! for rabi 1976. The learned counsel urged that since 26-4^-T976~wJas~niie~<Jate 6T~Tfie completion of the sale transaction between the vendors and Hap Said Khan and was also the date on which .Noor Muhammad respondent was certified by the patwan halqa to be the tenant of the suit land, Noor Muhammad respondent, being a tenant, was, therefore, having a "superior right, on the said date, over the pre-emptor who on that date was only a co-sharer. The learned counsel maintained that for that reason Moor Muhammad respondent could successfully non-suit the pre-emptor. The learned counsel submitted that the findings of the two Courts below were, therefore, un-assailable. 10. The learned lower appellate Court took the view that Noor Muhammad respondent was to be taken as a tenant of the suit land from the date of sowing of rl§bi_ crop. It was consequently held by that Court that Noor Muhammad respondent, having come to possess the suit land as a tenant earlier than even the date of entry of the sale mutation, was having superior right of pre-emption over pre-emptor who was only a co-sharer in the suit J5_hasra_. This finding of the learned lower appelate Court, being contrary "to the 'law laid down in P.L.D, 1956 S.C. (Pak) 309 and 1981 S.C.M.R. 1183, was un-susainable Once this finding disappears, then the principle of concurrent findings becomes in-applicable to the case. The material date for the purpose of finding out the tenancy of Noor Muhammad respondent in respect of the suit land, according to the dictum of the Supreme Court in the cases referred to already, was the date on which crop inspection for rabi_ 1976 wa-s made by patwari halqa.That date was 26-4-1976. Noor Muhammad respondent was, therefore, to be regarded as the tenant of the suit land from that date and not earlier. The sale mutation was, however, entered earlier than that date, and if it were to be held that the sale transaction had been completed earlier than the da'e of entry of sale mutation, then Noor Muhammad respondent, not beiing a tenant on that date, was not having a right superior to that of the pre-emptor. 11. With respect to the question as to on which date the sale transaction stood completed, 1 have given my anxious consideration to the arguments of the learned counsel for the parties and the evidence placed on record. In my view the argumens of trie learned counsel for the petitioners carry weight. The pre-empted sale was oral and the sale mutation No. 1195 was entered on 29-3-1976 at the instance of Haji Said Khan vendee. The report in respect of the sale transaction appears not to have been entered in Roznamcha Waqiati', or otherwise, its reference, at least, would have been made in column 12 of the mutation register. No other evidence was led at the trial to prove the exact date on which the sale transaction was completed between the vendors and the vendee. In the circumstances, the determination of the date on which the sale transaction had been completed would Depend on the entries made in the sale mutation. It is a matter of common \ ractice that after the oral sale affecting landed property is completed, it is reported to patwari halqa for incoprorating the same in 'Roznamcha Waqk ^ and mutation register, it is obligatory for patwari halqa, under section 42 of the Land Revenue Act, 1967, to enter in 'Roznamcha Waqiati' a rid mutation, register the reports made to him about the acquisTtIon~oT right in un estate. He is not expected or required by law to enter in the said revenue record the promises made relating to such acquisitions. Ordinarily, therefore, the acquisition must precede the report or the entry in either of the said documents, and there cannot be an acquisition unless there -sas come into being a concluded contract between the parties, in my view, therefore, the sa!e transaction, in this case, in absence of other evidence, had been completed on any day earlier than the date on which it was reported by the vendee to patwari halqa, who on its basic made entry thereof in the mutation register. That date, as already said, was 29-3-1976. Later, when the statement of ladles/vendors was recorded by girdawar circle on 26-4-1976, ' they also confirmed having sold the suit land in favour of Haji Said Khan. It was on 27-4-1976 that the sale mutation was sanctioned by the revenue officer. While taking his view, I am supported by the decision of this Court in Rehmat Shah's case (PLD 1971 Peshawar 205) and the decision of the Chief Land Commissioner in Kst. Kit,hwar Sultana's case (PLL) 1976 Rev. 30). This finding is, however, limited to the point under consideration and may not be taken to be applicable in broader sense., 12. It was thus established on the record that the sale transaction in respect of the disputed land was completed before 29-3-1976. On that date, as already held, Noor Muhammad respondent was not the tenant of the suit land. His tenancy started from the date when rabi crop was inspected by patwari haiqa on 26-4-1976. Consequently, he was not having any right to pre-empt me land on the day when the sale transaction was completed. The petitioners, being co-sharers in the suit khasra, had a superior right to pre-empt the sale. Their suit, therefore, merited to be decreed and the learned two Courts below erred in law in not granting them a decree for possession of the suit land by pre-emption. 13. As a result of discussion above, while acceptihg this revision petition, 1 hereby set aside the judgments and the decrees of the two Courts below and grant to the petitioners/plaintiffs a decree for possession of the suit land by pre-emption on payment of Rs. 15.000/- us pre-emption money. The whole of the pre-emption money is said to be in deposit. Since the difficult question of interpretation of law was involved, the parties are to bi;:ir their own cork. Petition accepted.

PLJ 1984 Peshawar 17 PLJ 1984 Peshawar 17 (D.I.Kh.in Circuit flench) NAZIR AHMAD Hll A 1 11, J .SAHMJJ HASTI KHAN---Petitioner versus N.W.F.P. Through Collector. D.I.Khan District and Others--Respondents Civil Revision No.81-D of 1978, decided on 8-10-1983. Land Revenue Act (W.P.Act XVII of 1967)—

Ss.39 & 53 and Pum.-.b Lam) Revenue Act (XVII of 1887)--Ss.3! ;. 45 -Right to irrigate land — Wrong entries regarding—Challenge to — C:vii suit—Competency of—Right "f plaintiff to irrigate his lands from Pam in question proving pr.rt of settlement record under Act XVII of 1967-- 1 Scttlelment of 1870 showing only one Dam, with no branch emanating from it, irrigating lands of plnir.tiff—Held: Division of such Darn int"i two branches in 1963-G'3 to he v/it).

ut i!"'-iifiention--Hn'-.i further: Plaintiff being aggrieved of wrong en trie' i.i revenue record of 1965-66, declare tory suit to Cu te competent. [P. 20 a 21 ]A Mr. Muhammad Isharj Khan Ki.'ndi, Advocate assisted by Mr. H. Saad UUah Khnn A Messrs H. Aziz-ur-Rehman, Moeen-ud-Din Khan & Bashir Hussain Zaidi, Advocate for Respondents. Date of hearing: 4-9-1983. JUDGMENT Sardar Hasti Khan, petitioner herein, is > !ar< nord, wning lands in village Rind, Te.ssil Kulachi of District D.I. Khan. Those hinds 'ire irrigated by Gandi Tomrn and this Dam is the only source of iri-'gati-in of his lands since 1878. When the record of rights was first prepared in 1878, this D-un (Gandi-Tomni) was entered as a permanent and an un-brcakablc Dam and being the first Dam of water channel known as 'Rod Rama-k'. The entire water channel Rod Ramak enters 'Gandi Chhar' through the Grindi lomni and then irrigates the lands of the plaintiff. The same system of irrigation was repeated in the settlement record of 1903-1904 and Gandi Tomni had not been broken or interfered with in any way. However, in the year 1965-1966 when settlement record was again prepared, an entry was made therein in the absence and without the consent of the plaintiff to the effect that the water channel Rod Ramak divides into tv.-o parts from Gandi Tomni and one branch is known as 'Chhar' and the above branch is known as 'Tnl Roc! Ramak'. This wrong entry, Jividing the water in two branches, was got affected by defendant No. 4 in collusion with defendants No. 1 to ; without any legal right, fictitiously and against the rights of the plaint;:!. The Revenue Authorities had no jurisdiction to change the irrigation system. which was incorporated in the settlement records of 1878 and 1903-1904 nor the Collector-, defendant No. 2, could divide Gandi Tomni into two write; channels. The plaintiff challenged the said wrong entries in the revenue record before the Revenue Authorities upto the Board of Revenue but failing there, he instituted a civil suit in the Court of Senior Civil Judge, D.I. Khan, for a declaration challenging the division of Gandi Tomni into two water ohani.ols and for permanent injunction restraining the defendants from breaking {.,.• same Dam and not to interfere with his irrigation rights. This suit was <-.. •; ted by the defendants. They inter aim raised th.' plea that the Civil C-n'Ct had no jurisdiction to adjudicate upon this matter which was exclusn ,ly within the jurisdiction of the Revenue Authorities. The trial was held on the following issues :- 1. Has this 'Hurt p<-t jurisdiction to entertain this action? OPP. 2. Has the ,.;.-Jintif ; -fry cause to briny this action? OPP. 3. Is the suit not 'nt dnable in its prc .'nt form? OPD, 4. Is the suit witi.ii, r ' OPP. 5. Is the suit bad for non-joinder of necessary parties? OPD. 6. Is the ,-i iff estopped to sue the defendant? OPD. 7. Has the p!"ni ff locus standi to bring the suit? OPD. 8. Has the been properly valued for the purposes of court fee and jurisdieiKiii? OPP. 9. Is the plaintiff entitled to the declaration prayed for? OPP. 10. Is the plaintiff entitled to the permanent injunction prayed for? OPP. 11. Relief? ADDITIONAL ISSUE 1.Whether the orders of collector dated 21-8-1971, 6-1-1972, 22-2-1972 and that of Additional Commissioner dated 4-12-1972 and that of Board of Revenue dated 4-7-1973 are void and ineffective against the rights of the plaintiff 2. After recording the evidence, as produced by the parties, the ic-arned Senior Civil Judge decided issue No.l about jurisdiction against the plaintiff, issues No.2, 7, 9, 10 and additional issue also against the plaintiff and dismissed his suit vide his judgment doted 26-7-1977. !'hc plaintiff filed an appeal in the Court of learned District Judge, U.I.Kh .1 . .ir.d the latter, agreeing with the findings of the learned trial J ,„ iimon issue No.l, dismissed the appea! vide his judgment dated 15-5-1978. The learned District Judge held that in view of section 60 of the Minor Canals Act and section 172 of the Land Revenue Act, the Civil Court had got no jurisdiction. 3. The revision petition was argued at length before rne by the learned counsel for both the parties, it was contended by the learned counsel for the petitioner appellant that the suid of the plaintiff was governed b> section 53 of the Land Revenue Act, 1967, which was analogous to section 05 of the Punjab Land Revenue Act, 1887, and the only remedy available to the plaintiff was by way of a • civil suit under the provisions o! the Specific Relief Act. On the contrary, the learned counsel for the respondents contended that no question of title was involved in the water channel in dispute and change in custom of irrigation could be made any tim« ¥ by the Government and the water was not the property of the plaintiff but of Government and the plaintiff could not establish any title over it, hence entries about division of water of the water channel Rod Ramak, u^ made ;n the settlement record of 1965-66, were correctly made. 4. Section 28 of the Punjab Minor Canals Act, 1905 empowers u,,' Collector to prepare record for any canal. For the sake of better understand­ ing, the provisions of sub-section U)of section 28 are reproduced as under:- "The Collector shall, whenever the Local Government may, by special order or by the rules made under the authority of this Act, so direct, prepare or revise for any canal a record showing «11 or any of the following matters, namely:- (a) the custom or rule of irrigation; (b) the rights to water and the conditions on which such rights are enjoyed; (c) the lights as to the erection, repair, re-construction and working of mills, and the conditions on which such rights are enjoyed; and (d) such other matters as the Local Government may by rule prescribein this behalf." 5. Tti ., jou. iti.c aforesaid provisions would show that the preparation of record of a canal does not include the case of making further branche of any canal or distributing of water uf cenai into other new branches. 6. The learned counsel for the respondents urged that if any dispute arose between two or more persons in regard to their mutual rights and liabilities in respect of the ownership, construction, use or maintenance of a canal or water course, then any such person may, in writing, apply to the Collector stating the matter indispute and then the Collector shall proceed to enquire the matter indispute. His contention was, therefore, that as a dispute about the use of water of the water channel Rod Ramak had arisen, the matter fell within the exclusive jurisdiction of the Collector and the Civil Court had no jurisdiction to entertain the same. 7. However, section 31 of the Punjab Land Revenue Act, 1887, pertaining tc record of rights, shows as which documents shall he entered in the record of rights. For the sake of better understanding, this section is also reproduced as under:- (1) "H.ive ,:s otherwise provided by this Chapter there shall be a ivi-onl of rights for each estate. (2> The record-of-rights for an estate shall include, the following docu­ ments, namely: (:i> statements showing, so far as may be practicable, - (i) the persons who are landowners, tenants or as-igr., < : uf land-revenue in the estate, or who are entitled to receive any of-the rents, profits or produce of estate or to occupy land therein; . (11) the nature and extent of the interests of those perons, and the conditions and liabilities attaching therein; and (iu)tne rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to the Government; (b) a KtatfT.K-nt of customs respecting rights and liabilities in the estate; a map of the estate; and (c) such other documents as the Financial Commissioner may, with the previous sanction of the Local Government, prescribed". .landing order vide notification No.7fi dated 1-3-1888 of the Punjab (; /vcrnrnorn was issued under these provisions whereby m statement of rights in wells and a .statement of rights in irrigation, if any,—from other -.'/urces were also to form part of the settlement record. If shall thus be ,i'fTi that ,'ilthough the Water Channel Rod Rarcuk is governed by the pro- .i'-uMis of the Punjab Minor Can.ils Act, 1905, however, right of irrigation f lands therefrom was to form part of the settlement record under the ! :.d Revenue Aft 1887. The aforesaid section 31 of the Punjab Land Revenue '- ' !Hh7 is now section 39 of the West Pakistan Land Revenue Act, 1967. ' -.!•>- setti<-rr,er;t record made under the former Act is also to be maintained ,:',>! c.cpt pruit-r section 39 of the 1967 Act. 8. As the plaintiff felt aggrieved by the said wrong entries in the revenue record of 1965-66, his remedy lay under section 53 of the West Pakistan Land Revenue Act, 1967 which is analogous to section 45 of the Punjab Land Revenue Act, 1887, and the only remedy available to the plaintiff was a declaratory suit in a Civil Court under section 42 of the Specific Relief Act, 1877. 9. The learned trial Judge and the learned District Judge were both wrong in holding that the matter indispute in the present suit did not fall within the jurisdiction of the Civil Courts. The learned District Judge was further in error on relying on the provisions of section 172 of the West Pakistan Land Revenue Act, 1967, because, the provisions of section 53 of this Act are very clear and the matter fell within the clear jurisdiction of the Civil Courts. Section 10 of the Minor Canals Act is also not applicable, as held by the learned District Judge, because, it was not a question of control, management and direction for the efficient maintenance and working of a canal. On the contrary, it was a question of right to use the irrigation water which is not covered by the provisions of section 10. I would, therefore, set aside the findings of both the learned lower Courts on issue f No.l and decide this issue in the affirmative. 10. The net result of the above discussion is that I would accept this revision petition, set aside the impugned judgment dated 15-5-1978 of the learned District Judge, D.I. Khan and findings of the lelarned trial Judge on issue No.2, 7, 9, 10 and additional issue and would remand this case bjck to the trial Court for a fresh decision taking into account the entries about the use of water of the Dam in question as recorded in the settlement of 1878 and thereafter and then to determine the respective rights of the parties. Costs to follow the event. The parties are directed to appear before the learned Senior Judge, D.I. Khan on 3-11-1983. i TQM) Petition accepted.

PLJ 1984 Peshawar 21 PLJ 1984 Peshawar 21 (D.I.Khan Circuit Bench) Present: NAZU AHMAD BHATTI. J UMAR Petitioner versus NAZOO and Others Respondents Civil Revision No. 33-D of 1980, decided on 20-2-1984. (i) N.W.F.P. Pre-emption Act (XIV of 1950)— — S. 16 [as amended by N.W.F.P. Pre-emption (Amendment) Act (VU of 1972)J--Vendee~Improvement in status of—Effect of—Vendee making improvement in status by getting shares of other vendees in his favour within period of limitation—Pre-emptor possessing no superior pre­emptive right against vendee at time of decision of suit—Held: Suit to be dismissed on such score alone. [P.23 ]A&B (ii) N.W.V.P. Pre-emption Act (XIV of 1950)— — S. 19—Sinker—Principle of—Applicability of—Vendee joining with himself persons not possessing any pre-emptive right—Held: Effect of sinker being not permanent, vendee (to be competent) to remedy situation by getting property transferred in his favour within period of limitation. [P .23 1C (iii)N.W.F.P. Pre-emption Act (XIV of 1950)— - S3. 4, 11 & 12--Prc-emption--Suit for—Sinker—Doctrine of—Applicability of—Petitioner obtaining share of other vendees within period of limitation and successfully resisting suit as being tenant of entire suit land purchased by him originally from other vendees—Held: Principle of sinker not to be applicable in circumstances. (P. 24 ]D (iv) Civil Procedure Code (V of 1908)— S. 115-- Revisional jurisdiction—Exercise oi'--Luf.;rU position—Failure to appreciate—Effect of—Both lower courts acting with material irregularity in their failure to properly appreciate legal position—Held: Revision petition to be accepted in circumstances. [P. 24 )E Mr. 11. Saadullah Khan, Advocate for Petitioner. Mr. II. Azizur Rahman Halooch, Advocate for Respondent. Date of hearing: 9-1-1984. JUDGMENT The suit land was purchased by the petitioner and resp.. 'J herein from Haji Sultan through sale mutation No. 3730 attested l:j : 1-1974 for Rs. 1200/-, but a fictitious sale frice of Rs - 2400/- v.<- itHMjtioned in the mutation. Nazu and Faraz respondents No. 1 and 2 herein preempted the sale transaction on the basis of co-sharership in, participation in the immunities and appendages of, and contiguity with, the suit land. The defendants in the suit contested the suit. However, defendants No. '.'. to 8 who are respondents No. 3 to 9 herein sold their share of the suit land for Rs. 1850/- in favour of Dinar defendant No. I/petitioner herein vide mutation No. 3834 attested on 25-9-1975. The trial was held on the folio wing issues :- 1. Whether the plaintiff, has a cause of action? OPD. 2. Whether the plaintiff hove got a superior ri^ht of preemtion? OPP. 3. Whether the sum of Rs. 2400/- has been fixed and paid in good faith? OPD. 4. What is the market value of the suit land? OPP & OPD. 5. Relief? 2. After recording the evidence of the parties the learned Additional Civil Jucige, D. I. Khan decided issues No. 1 and 2 in favour of the plaintiffs and in issues No. 3 and 4 he held the market value of th suit land to be Rs. 1200/- and granted a decree in favour of the plaintiff vide judgment dated 30-6-1979. Umar defendant No. 1 in the suit, feeling aggrie­ ved by the said judgment, filed an appeal in the Court of the learned District Judge, D.I. Khan, who held that the appellant although having a superior preemptive right based on tenancy of the suit land had joined with himself, other vendees having no pre-emptive right and as such the transfer of the share of the other vendees in his favour was hit by the principle of sinker, and so the learned District Judge dismissed the appeal vide judgment dated 15-4-1980. Hence the present revision petition. 3. It is admitted that Umar petitioner herein was tenant of the buit land when it was purchased by him and the other vendees. It is also admitted that the other vendees sold their shares of the suit land to the -'•said Umar on 25-9-1975, within the period of limitation, but after the institution of the preemption suit of Nazu and Faraz. The suit was instituted on 19-7-1975. It is also admitted that the other vendees had no preemptive right as against the plaintiff preemptors. The two points requiring determina­ tion are as what is the effect of transfer within the period of limitation of the share of other vendees in favour of the petitioner herein and whether the principle of sinker was applicable to the case. 4. Regarding the first point it may be stated that under section 16 of the N.W.F.P. Preemption Act no decree for preemption can be passed in favour of any person unless he has a subsisting right of preemption at the lime of the decree. It shall be seemed that the plaintiff/respondents No. 1 and 2 herein were not possessed of any superior preemptive right us against Umar petitioner herein on 30-6-1979 when decree was granted in the suit for the reason that by getting the share of the other vendees in his favour within the period of limitation, the petitioner herein was possessed _, with the first right of preemption on the basis of tenancy in the suit land. Had the transfer in favour of petitioner herein been made after the period of limitation, then it would not have effected the rights of the plaintiff/ respondents No. 1 and 2 on the basis of the explanation added to section 16 of the N.W.F.P. Preemption Act, 1950 by the N.W.F.P. Preemption (Amendment) Act (VIII of 1972) published on 27th June, 1972. As is clear the transaction by other vendees was made in favour of the petitioner within the period of limitation and it amounted to improvement in the status of the petitioner within the meaning of section 16 read with the explanation thereto, as aforesaid. On this score alone the suit should have been dis­ missed. 5. In so far as the second point is concerned the learned District Judge failed to appreciate the legal position properly. The effect of sinker is not permanent and it can be remedied by the vendee and such a remedy is not illegal, if a vendee has joined with himself persons who are not possessed of any preemptive right, the said vendee can remedy the situation " by getting the property transferred in his favour within the period of limitation. The learned counsel for respondents No. 1 and 2 has urged that the principle of sinker, as enacted in section 19 of the N.W.F.P. Preemption Act, is a statutory provision and its effect is permanent and this dis-qualification can not be remedied However, the latter portion of this assertion is without any force on account of the dictum laid down in the cases of Gul Shah v. Jamroz and others (PLD 1962 Peshawar 34) and Muhammad Abbas v. Sultan Khan and 2 others (PLD 1972 Peshawar 122). In both these cases it has been held that the loss of equal right of preemption on account of doctrine of sinker is not permanent or irremediable, and the vendee does not lose irrevocably his claim to resist the suit. The principle of sinker was also not applicable to the case for the simple reason that the petitioner had within the period of limitation obtained the share of the other vendees in his favour and as such he could successfully resist the suit as being a tenant of the entire suit land purchased by him originally from the other vendees. 5. Both the learned Courts failed to properly appreciate the leyai position in the case and have acted with material irregularity. I would therefore, accept this revision petition.. However, on account ol trie lojjal p,;,; ts involved in tlie ease, the pririiivar" !• !'t to bear their <>v,n costs

PLJ 1984 Peshawar 24 [DB] PLJ 1984 Peshawar 24 [DB] i're-cnr: S. I. 'SMAN ALI SHAH, C.J. & ABDUH KEHVAN KHAN K A11 , .1 MUHAMMAD ASIliy ai.cs 2 Other- -Petitioners versus FAQIR MASOOM a.d 2 Other: —-Respondents Writ Petition No. 177 :>:s, decided on 23-1-1984. (i) N.W.F.P. Pre-emption Act (XIV of 1950)— — S. 23--Pre-emption money--Deposit ol'--0rder ot--ilcld: Requirement of cash deposit or security having been intended to guard against vexatious, and mala fide litigation, vendee to be provided guarantee against such litigation—Sale consideration mentioned in mutation actually paid to vendee—Held: Object to be properly attained by deposit of cash amount [P.27 ]B PLD 1967 SC 418 & PLD 1965 (WP) Pesh iwar 90 ref. (ii) N.W.F.P. Pre-emption Act (XIV of 1950)-- — S. 23—Pre-emption money--!)oposit of—Order of—Trial Court directing pre~emptors to deposit certr-:.>i amount in cash and to furnish security for remaining—Subsequently. Civil Judge ordering deposit of entire amount in cash, before settling issues on his satisfaction of actual payment of sale consideration to vendor--Held: Civil Judge being compe­ tent to vary original order for good reasons before settling issues in case, fresh order for deposit of cash to be justified. |P .27 JA1C AIR 1938 Lahore 452 distinguished. Qazi Muhammad Anwar, Advocate for Petitioner. Mr. Aziz-ur-Rehman Barni, Advocate for Respondent. Date of hearing: 23-1-1984. ORDER Abdur ttehman Khan Kaif,propose to dispose of Writ Petitions No. 177/83, 178/83 and 179/83 filed by Mohammad Ashiq and two others against Faqir Ma scorn Khan and others involving similar question of law and fact by this order. 2. The facts relevant to the petitions an- "The petitioners arc plaintiffs in three pn.-

Mptim, suits relating to three different transaction- of :--,'>e effected through rnutntion No. 529, 527 and 528. All the mentioned sale n. ..;..; s attested in the name of Faqir Masoom Khan respondent on tin •-.irrie date !.' 30-12-1981. In sale mutation No. 520 the : consideration v,a<- shi'/wT. as Rs. 9.94.350/- in mutation No. 527 i -.hoi." as Ks. 2,CO,000/- while in mutation No. 528 the sale eonsKler.ition v.as si,' wn as Rs. 1.37.400/-. Thus according to the mentioned -,vrrd the respo;; dent No. 1 had purchased landed property per above rr:entioned threi mutations attested on the same date involving the total amount of i;s. 13.31.750/-". 3. The learned Civil Juuje on whose di.iry the o; e. were peMiin vide his order dated 2-1-83 issued directions to the petitioners for the deposit of a tentative amount of Us. 3,00,000,— in pre-emption suit No. 'Ml of 1982. Out of the mentioned amount petitioners were required to deposit Rs. 2,50,000/- in cash and to furnish security for the remaining amount o! Rs. 50.000/- to the satisfaction of the Court. In pre-emption Suit No. I/": of 1&82 the petitioners were directed to deposit Rs. 50.000/- as pre-emption money out of which' they were required to deposit Ks. 40.000/ in cash and for the reamining amount of Rs. 10.000/- they were to furnish security. Similarly in pre-emption suit No. 2/1 of 1082 the petitioners had to deposit Rs. 40.000/- in cash and to furnish -security for the remaining amount of Rs. 20.000/- to the satisfaction of the Court out of the tentative amount There is no denying the fact that the petition rs in compliance with the directions so issued on 2-1-83 deposited the aforementioned amount in cash and also furnished security to the satisfaction of the Court. 4. On 13-3-1983 Fuqir Masoom Khan respondent No. 1 subrr.ittrti an application in the lower Court with a request that the petitioners be directed to deposit the entire amount shown as sale consideration in cash for tile reason that the payment of the entire amount had been made by him by means of bank cheques and the payment so made was duly received in the account of the vendor. 5. The learned Civil Judge (respondent No. 2) v^ide his order dated 14-3-83 while accepting the request so made issued fresh directions to the petitioners to deposit the entire sale consideration in each case informing them that in case the amount is not deposited within the specified period the plaint in each case shall be rejected. This order dated 14-3-83 of respondent No. 2 was challenged in revision petition before the District Judge, D.I. Khan (respondent No. 3) but for the reason recorded therein the petition so filed was rejected on 14-5-83 wherein the orders of respondent No. 2 d-:'.'.;' \ • - 1 S3 were upheld. .toners have accordingly invoked the constitutional jurisdiction filing the present petitions wherein the orders of the two Courts below huve been assailed on the grounds mentioned in each of the petition, 7. All the three petitions were heard by us in motion today. The learned counsel contended that respondent No. 2 was not competent under the law to review his previous orders dated 2-1-83 in an arbitrary manner and submitted that the orders passed by respondent No. 2 on 14-3-83 in supersession of the previous orders were illegal, having been passed in excess of his authority and jurisdiction, lie argued that the power of review being a creation of statute were not available under Section 23 of the Pre-emption Act, 1S50 and as such the learned trial Court had no power to review his previous orders. He also assailed the orders dated 14-3-83 of respondent No, 3 for similar reason and stressed that the learned District Judge has also failed to exercise his jurisdiction properly by refusing to interfere with the order dated 14-3-83 passed by respondent No. 2. Me argued that having already fixed the tentative amount, accepted the tender of cash amount as well as the security furnished, the learned Civil Judge iiad no justification for revising his previous order after a period of about three nonths ynd was, therefore, not competent to change or vary his pr'-viouo order. . We have examined the points raised by the learned counsel for the petitioners in the light of the re:<>v;i!;t lnw and the material available on the record. Under Section 23(1) of the N.W.F.P. Preemption Act, 1.950 it is obligatory on the Co;,vt entertaining such a suit to require the plaintiff to deposit in Court the probable value of the property in cash or require the plaintiff to furnish .security to the satisfaction of the Court for payment of a sum not exceeding such probable value within such time as the Court n..-j/ fix in such order. It is to be mentioned that such an order is to be made before the settlement of issues in the case. 9. Ihe rnasn question which requires determination in the instant case is whether the trial Court was competent to vary its original order and to replace it by order requiring the plaintiff to deposit the entire amount in cash, it is thus to be seen whether on 14-3-83 circumstances existed for bringing about the change and whether it was open to the Court to exercise fresh option by issuing fresh directions in supersession of the previous orders dated 2-1-83 for the deposit of the entire sale consideration as mentioned in each of the mutation in cash. The admitted position as it stands on the record is that issues had not then been settled when the impugned orders were passed. In support of his argument the learned counsel for the petitioners made reference to Zaman Mehdi Khan v. Hayat Khan (A.I.R. 1338 Lahore f jge 452) and stressed that the option as regards choice between cash and security naving already been exercised by the trial Court, it was not competent to revise the previous orders.— 10. We have gone through the contents of the case cited above and have found that the facts of that case were quite different and distinguish­ able. In that case the plaintiff was directed to furnish security but the surety withdrew subsequently and the plaintiff was asked to deposit the amount in cash within the specified period. On his failure to comply with such direction his suit was dismissed. On appeal the learned appellate Court held that as the security bond had become void, the Court should have asked for fresh security and not cash. He accordingly remanded the case. The mentioned orders were challenged in appeal and in that case the learned single Judge observed: "In my opinion the interpretation placed on S. 22(5)(b) by the learned District Judge is correct. S. 22(1) was not longer applicable as issues had been framed and the option as regards choice between cash and security had already been exercised". 11. It is thus evident that the mentioned observations were made for the reason that issues had already been settled in that case and the option as regard the choice between the cash arid security having already been exercised could not be intefered withy In the present case the position is quite different firstly for the reason that the original orders for the deposit of preemption money partly in cash and partly furnishing security was replaced by one requiring the plaintiff to deposit the entire amount in :ash. The other point of distinction is that in the case cited above the order for deposit of cash was passed after the framing of issues whereas in the instant case that stage had not been reached and it was still open to the Court to exercise the option as regards the choice between cash and security before the settlement of issue. 12. A somewhat similar question came up for consideration before their Lordships of the Supreme Court in case Chaudht •> Zulfiqar All v. Mian Akhtar Aslam and one other (P.L.D. 1907 Supreme Court page 418). In the cited authority their Lordships observed that the powers of passing fesh order under the relevant provision does exist but sucli powers are to be exercised in express terms before the settlement of issues. To a similar effect is the Peshawar decision reported as Murad Ali Khan v. Mian Abdullah Shah and others [P.L.D. 1965 (W.P.) Peshawar page SO), wherein it wa.-. held that such powers are exercisable up to the stage before the settlement of issues and can be exercised as such. 13. From the discussion made above it becomes clear that the time for making a choice in the instant case had not expired than and as such it could not be said that the option was no longer alterable. 14. In the circumstances we are, therefore of the well considered view that respondent No. 2 in the instant case was competent to vary the original orders for good reasons at that stage when the issues in the case ,v-?re yet to be settled. It is well known that the requirements of cash deposit or security mentioned in sub-section (1) of Section 23 of the NVVFP Pre-emption Act is intended to, guard against vaxatious and mala fide litigation and its main purpose is to provide a guarantee to the vendee against such litigation and that object can be properly attained by the deposit of cash amount if it if- proved that the sale consideration mentioned in the mutation was actually paid to the vendor. 15. In the instant case the Civil Judge while passing the fresh orders was shown the bank cheques and was further informed that the amount so paid had been deposited in the account of the vendor. There being no evidence of the return or refund of the amount so paid at the mentioned stage, the learned trial Court was justified in passing the impugned fresh orders for the deposit in cash. 16. For the above reasons we find no valid ground for interference in the impugned orders in tht exercise of our constitutional jurisdiction. 17. The petitions being without rr;crit are accordingly dismissed in liminc. Status quo order dated 28-6-1983 is vacated. Petitions dismissed.

PLJ 1984 Peshawar 28 PLJ 1984 Peshawar 28 Present: ABDUI. K'AR'IM M ; M.'l. J T1LA MUHAMMAD Petitioner versus MAQSOOD and 3 Others Respondents Civil Revision No. 242/78, heard on 25-1-1984. (i) Civil Procedure Code (V of 1908)— S. 115- Hij^h Court--Revisional jurisdiction of--Exercise of—Evidence— fri::v.,ii :i Held: Evidence to be appraised only to find out lapses of misreading or non-reading of weighty evidence by courts below, otherwise revisioriai jurisdiction of High Court not to be exercised (on findings on issuers of fact). (P. 30 ]A (ii) Civil Procedure Code (V of 1908) — — S. 115---Higt' Court---ttevisional jurisdiction of--Exercise of--No misreadin;' on non -reading of substantial evidence on record by courts below found in Arriving at concurrent findings in question of fact-- Petitioner (also) not making out any case for interference in exercise of revisional jurisdiction — Held: Petition being simply incompetent to .merit dismissal. [P. 32 ]E (iii)Kvidencc Act (I of 1872)-- — Ss. Co & (if! -Secondary 'viilence--Admissibility of--Failure to object - Effect of - • Phi'/tos ta; ci/py oi private document on unstamped paper prodi.cvd an;) .'idrr.itteil without objection in court of first instance—Even f,u object; in >o it:-, <:;!::;i:,sibility or otherwise taken before first appellate court or in revision before li'gh Court--Ilcld: Document to be read in '•vidonoe. |l'. 3D |R (iv)Adverse Possession— Denial of title- Etfeet of-• Petitioner denying title of respondents in partition proceedings before Revenue Court as well as in suit for rendition of accounts subsequently brought by respondents—Court directing peti­ tioner to seek declaration of title from civil court—Held: Prescriptory title of petitioner not to be said to be matured against respondents through adverse possession in circumstances. (P. 32 ] £ PLU 1952 Lah. 483 rel. (v) Adverse Possession— — Co-sharer--Adverse possession—Plea of—Held: All co-sharers being in possession of every inch of joint estate, no co-sharers to (be competent to) set up adverse possession against one co-sharer in joint holding allowing other co-sharers to retian joint possession of holding to extent of their shares. [R 32 ID Mr. Z. Mahfooz Khan, Advocate for i'etitu --or. Mr. Shaukat Hayat, Advocate for Respondent v . : o I. Mian Muhammad Ismail Qureshi, Advocate for Re,pendents No. 2 to 4. Dates of hearing: 11/14-1-1984. JUDGMENT Civil Re\ iMon No. 242 ->f 1S7S is directed against the judgments and decrees of the Courts of Civil Judge, Peshawar dated 31-1-1377 ; ; nd District Judge, Pes:;wui dated 9-5-1978, vide they (.'(incurred in their findings and held that the petitioner had failed to prove acquisition of title to the suit property by the instrument dated 13-4-51 or through adverse posse;>..,ion and ; :s a result dismissed his suit and appeal. J. Brief:, suitd, the petitioner brought .1 suit for declaration that hiister Mst. 1'ukhraj Begu'r; !:ad transferred her ,hn.rv in the join' estate hv an instrument dated i'.-t 5! and th'it on her dedt'i her share li,i>; beei. wrongly mutated in thi- '..lmcs

,f !.er 'shari' heirs, the respondents. He alleged that the respondents had brought a~-,.;:t for partition in the year 1005 but on account of his denial of their title, the revenue court dire'-tei; then; to seek their redoress in the civil court. Later on respondent-- h : brought a suit for rendition of accounts in the revenue court ar.ci aguii: for his denial of their title the revenue court adjourned the proceedings sir.o dje but wrongly directed him to seek a declaration of his title fro": the civil court. He further clainvd to have matured his pre-,criptory t ; 'Uthrough adverse possession for over a period of 12 years. 3. Respondents had raised preliminary objections of estoppel, lir.itati'iri and form of the suit and also alleged that their predecessor Mst. 1'ukhraj Begum had not transferred her sl'are to the petitioner and the u r .tri.r^ent was a forged document based on collusion. They claimed to be the ', sharers and to have rightly brought suit-- !'••.- partition and rendition <: accounts in the revenue courts. They al>o Denied the adverse posses-ion of the petitioner. Hafiz 1-ida Mohammad was later on transferred the suit land by the heirs of Mst. Pukhraj Begum vide mutation dated 4-11-72. He had claimed protection under section 41 br the Transfer of Property Act as being a bona fide purchaser for value from ostensible owners. 4. The trial Court framed issues on limitation, estoppel, protection under section 41 of the Transfer of Property Act and adverse possession but there were not framed specified issues on the acquisition of title by the petitioner on the basis of instrument dated 13-4-51 and if the said document was a forged document based on collusion. Anyhow, there has been brought on record sufficient evidence for and against the issues of facts arising from tlv pleadings which has been discussed by the courts below pertinent to th. issues. 5. At the outset learned counsel for the respondents strenuously argued that section 115 C.P.C. applies only to cases in which no appeal lies or where the Legislature has provided no further appeal and the manifest intention is that the order of the court below right of wrong shall be final. He contended that the courts below had concurred in their findings on the issues of fact relating to the acquisition of title by the petitioner under instrument dated 13-4-51 of adverse possession and dei ii'e-'i both the issues against the petitioner. Further it was also not a case of mis-reading ur non-reading of some weighty evidence. Again the revisional jurisdiction c; this court is not to be exercised even if this court arrives at some different conclusion from the subordinate courts upon question of fact and evoji law. In support he referred to PLJ 1083 Supreme Court 1, in which PLD 1949 Privy Council 26 has been referred with approval. He contended that no interference, whatsoever, was called for in this case in up setting the concurrent findings of the courts below on question of fact by re-exami­nation of the evidence in revision by this court. There is no cavi! with the proposition and this court shall only appraise the evidence to find out lapses of mis-reading or non-reading of weighty evidence by the courts below, otherwise revisional jurisdiction will not be exercised. 6. The evidence comprises of the statement of jpjrtwari halqa (P.W.I), producing the revenue record in his possession and placing certified copies thereof; statement of Umar Bakhsh (P.W.2). producing the original register of his father, a petition-writer, the scribe of the instrument dated 13-4-51; statement of Rahirn Hakhsh (P.W.3), a marginal witness to the instrument and the statement of Tila Mohammad (P.W.4), the petitioner himself. On the other side, Haji Fida Muhammad, the contesting respondent had recorded his statment as D.W.I. 7. There was placed on file a photo stat copy of the instrument dated 13-4-51 marked EX. P. W.2/1, which is the copy of a private document on an un-stamped paper. In fact the orginal document as a primary evidence was to be placea on file as contemplted by section 64 of the Evidence Act as it is not the document of a nature and character relating which there can be given secondary evidence as provided under section 65 of the Evidence Act. Since the document has been admitted without objection in the court of first ins', nee and there has also nut been taken any objection to its admissibiHty or otherwise in the first appellate court and even before this court and in fact there has been taken suo_rm)to notice of this fact by this court and that also for the guidance of the subordinate courts; hence this document EX. P.W.2/1 shall be read in evidence as and how it is. 8. The English version of the instrument Ex. P. W.2/1 is re-produced below to facilitate the adjudication of its character and contents:- "I, Mj3tj_ Pukhraj Begum daughter of Agha V.uhammud wife of Haji Mohammad caste A wan, resident of Mohullah Gandi Verra, Peshawar City at this time with due understanding and full conscience writ and ! urn sick for the last six months. There is no guarantee of life. Conse­ quently during my life time I make this will that after the death of my father, Tila Mohammad son of Agha Mohammad, my brother, resident of the same Mohallah has spent Rs, 1500/00 on my marriage and Ks. 250/00 is a mortgage amount of my 1/8 share of the house which my brother, Tila Mohammad wii! pay on my behalf and redeem the house. The entire Rs. 1750/00 of my brother Tila Mohammad is payable by me, If 1 recover from illness I will pay my brother Tila Muhammad. If God forbid, 1 die, then my brother Tila Mohammad will spend Rs. 250/00 on my obsequies from his own pocket. The entire Rs. 2000.00 of my brother. Tila Mohammad will be a debt against me and one entire two storey house situated in Gandi Verra, Peshawar City, inherited from my father, bounded as follows: Towards o;>'-t, house of Abdullah, west house of Gul Mohammad, north house of Sultan Mohammad, South door of the house and street as well as house of Ameer in which 1 have got 1/8 share. I also own 1/8 share in the inherited agricultural land. Therefore, after my death my brother Tiia iviohmnmad will have right to sell the l/8th share of the house and l/8th share out of the land or to fix market price and keep it himself and adjust his debt of Rs. 2000/-. If something is left, it will be paid to my children. My other heirs and my husband shall have no right or concern with the share of house and the share out of the land. My brother Tila Muhammad shall have full right to sell the two properties. Consequently, I execute this will with complete understanding and conscience in favour of my brother, Tila Mohammad". 9. The instrument proceeds to state that the executant was sick for the last six months. She made a will acknowledging her indebtedness to the petitioner for the sum of Rs. 1500.00 spent by him on her marriage and Rs. 250.00 to be paid by him at the time of redemption of the house for her share, in the house. She promised to pay the amount to the petitioner on her recovery from illness. However, in case of her death, the petitioner was expected to further spend Rs. 250.00 towards her funeral expenses rind thus a total sum of Rs. 2000,00 was to accrue as a debt against her and her l/8th share in the entire two .storey house. She stated also to own i,'Sth share in the agricultural land. She was to vest a right in the l etitioner to sell her l/8th share in the house and the land or to fix its market price and Keep the .same with himself and adjust his debt and to ,;ay the surplus to her children. Her other heirs and husband were stated not to have any right or concern with her share in the house and the land. The petitioner was to have full right to ^oil the two properties. Consequently, she executed the will with complete understanding and full conscience. 10. The instrument as read above embodies the contents of acknowledge­ ment of debt, will, transfer deed and a power of authority to sell all in an uncertain language sornuch as that it cannot be called a will or a transfer deed and it shall also cease to operate as power of authority on her death. At the most it can amount to the acknowledgement of a debt on her part. Hence the finding of fact on the part of the Courts i.elow relating to the instrument dated 13-4-51 as such is exceptionable, 11. As far the adverse possession the learned counsel lor the petitioner pleaded that if the instrument dated l,')-4-51 is held to be an mvlaid deed under which he has allegedly obtained the possession of the land and has held the same in his own right till today, he shall be as such deemed to have held the suit land in his adverse possession and to have matured title thereto. In support he referred to P.L.D. 1964 Supreme Court 220. The facts of the cited case are, however, different as there was executed as unregistered gift deed, an invalid document, arid further there had been taken possession by the donee under the deed which he continuouslly held and thus set up an adverse possession. In the Instant case there has not come forth evidence if the petitioner had taken possession of the suit land under the invalid instrument dated April, 1951. Herein the petitioner has been recorded in joint possession with the other co-sharers prior to the execution of the invalid document, at the time of its execution and thereafter till to day. It cannot, therefore, be send that the petitioner acquired the possession of the suit property under the invalid instrument. 12. It was next argued that the petitioner had denied the title of the respondents in the partition proceedings brought by them in the year 1955 and this overt act on his part should suffice setting up of adverse possession ever since against them. In support he cited P.L.D. 1951 Lahore 85, a Single Bench authority, without reference to any case law on the point, holding a view that the denial of title in the course of partition proceedings with respect to agricultural land should amount to the assertion of advei'-e title. However, the appeal was dismissed as the so called adverse possession was set up by occupancy tenant against an co-occupancy tenant not permi­ ssible under section 9 of the Punjab Tenancy Act. On the other hand, a reference was made to a Division Bench authority published in P.L.D. 1952 Lahore 483, which has traced out the history of case law on the point and has held that a simple assertion before the revenue officer in the partition proceedings as the plaintiff having no title in the land and the revenue officer also declining to grant partition without express finding and the possession to continue us before shall not amount to an overt act any kind nnd the defendant shall not be deemed to have established adverse possession ever since the simple denial of title of the rival co-sharer in the partition proceedings. Instantly, there was a denial of title by the petitioner in the partiti n proceedings ir, which the respondents v.ere directed to seek a icdress in the civil cour' a;i,i when later on they brought a suit for ..encition of accounts rind the petitioner hud c^ain denied the title of the re..prndents, the petitioner w.v, then directed to Seek a declaration of his t'tlo from the i.,vi! court. It cannot, therefore, be said that the petitioner hi.-. prescnptory title against a co-sharer through adverse l.i. In th(: copies of iajnji^ndis right from 1941-42 till last, the estate ha:, bet-.", recorded jointly ovvrTr-d" If:id possessed b> the heirs of Agha Jan in both the proprietary ship an.) cultivation columns so much so that there has not been effected' any change in the jamaba^idi^ of 1951-52, 1956-57 arid 1960-6! in which M_st. Pukhraj and on her death her heirs have been duly recorded us ji.int owners in possession with other co-sharers although the petitioner h'ul claimed to have act up adverse po-session under an invlid document dated 13-4-51 arid later on by the deni .! of respondent's title in the pj rtition proceedings in the year 195;>. On the death of Ai'ha Jan some time before 1911 -i'2, his estate had devolved on his widow, three sons including the petitioner and two daughters and all the heirs have been recorded as co-sharers in joint possession of the estate. In case of a joint holding, all the . sharers shall be deemed to jointly own r.nd possess every inch of the joint estate and a co-sharer cannot set up an adverse possession against one co-sharer in the joint holding allowing other co-sharers to retain joint possession of the hoKiii.r '" the extent of their shares. 14. In view oi the abo^-e, this court finds that there has been no mis-reading of evidence or non-rending of some substantial evidence on record by the courts below in arriving at concurrent findings on question of fact. There whs not beins; made out any case for interference in the exercise of revisional jurisdiction. The revision petition is simply incompetent to merit dismissal with costs. Orders accordingly. (TQM) Petition dismissed.

PLJ PLJ Peshawar 33 [DB] Present: ALLAH BAKHSH & ABDUL KHALIQ KHAN, JJ ABDUL JA8BAR KHAN Petitioner DIRECTOR, PCSIR LABORATORIES, Peshawar University , Peshawar and 11 Others Respondents Writ Petition No. 556 of 1978, decided on 19-1-1983. Constitution of Pakistan , 1973— — Art .199--Civil servant—Promotion from particular date — Determination of qustion of—Held: Promotion being no vested right of public servant, question of determining fitness or otherwise of petitioner to promotion from particular date not to be determined in writ petition. [P. 34JA Mr. Abdul Samad Khan, Advocate for Petitioner. Mr. Nisar Ahmed Khan, Advocate for Respondent. Date of hearing: 6-12-1982. JUDGMENT Allah Bakhsh, J.—Abdul Jabbur Khan has by this Constitutional petition sought the issuance of an appropriate writ, direction or order to respondents No. 1 to 3 to treat him at par with other promotees to Grade-17, to refrain frorr rr : ak;ng any discrimination and to determine his fitness to be appointed :o the said grade from the date of passing his M.Sc. examination. 2, The facts forming the background of the petitioner's grievance are thai re was working in the P.C.S.I.R. Laboratories, Peshawar and on 3-5-1972 was promoted as Research Chemist (Class 11). He and nine others were promoted as Research Oficers in Grade-17 on 14-6-1976. The promotion of the others was to take effect from the date of passing their M.Sc. examination and with a benefit of five advance increments from 1-7-1975. A similar privilege was not extended to the petitioner and his representation in this context could not succeed. It was contended by the authorities concerned that he was promoted not on the basis of his academic qualifications being a third divisioner in M.Sc. but he was promoted on account of his past experience and performance. 3. The impugned order dated 14-6-1976, Annexure 'A' shows that respon­ dents Nos, 4 to 12 were promoted as Research Officers in the N.P.S. No. 17 (Rs. 500-50-1000/50-1250) with effect from the date of their passing the M.Sc. examination. The Selection Board approved the promotion of the petitioner by upgradaton of his present post to the post of Research Officer in N.P.S. No. 17 referred to above. There is no denial of the fact that the petitioner passed his M.Sc. examination in 3rd division whereas the aforesaid respondents had passed in second division. The learned counsel for the petitioner strenuously contended that the petitioner had been treated discriminately vis-a-vis the other respondent-promotees and that there was no rule to show that a third divisioner could not be promoted to N.P.S.No. 17. His contention _appears to be without force and substance. U was Karachi made the folk "At this stage the case of Mr. Abdul Jabber, Research Chemist of Peshawar Laboratories,who could not be promoted owing to his 3rd Division in M.Sc. but had sufficient experience and publications at his credit, was considered and approved for promotion as Research Officer." It is manifest frorri the above minutes that being a 3rd divisioner the petitioner could not be promoted and since he had sufficient experience and publications at his credit, his promotion was approved as a Research Officer. It follows that respondents No. 4 to 12 were promoted on the basis if merit in as much as they were 2nd divisioners in M.Sc. but the same- qualification was not possessed of by th? 1 petitioner and, as such, he was promoted on different ground altogether, namely, his experience and publications. It cannot, by any stretch of imagination, be said that he had been treated discrirninately in the matter of promotion yjsj-a^vis the respon­ dent -promotees. 4. The ierned counsel for the petitioner urged that there were prcedenis to show that a 3rd divisioner had been promoted as Research Officer and he in this context referred to a certificate Annexure 'C 1 pertaining to Mr. Taj Aii VVazir, A look at the said certificate shows that no mention has oeen made therein with regard to Mr. Taj Ali Wazir being a 3rd divisioner and, as such, it Sends no support to the contention of the learned counsel lor the petitioner at all. Moreover, promotion is not a vested right of a public servant and the question of determining the fitness or otherwise of (h petitioner to be promoted to Grade-17 from a particular date cannot be iietrmined in this petition. 5. in the result, we find no merit in the petition which is, therefore, dismissed with costs. (TQM) Petition dismissed.

PLJ 1984 Peshawar 39 PLJ 1984 Peshawar 39 Present: S, USMAN AU SHAH, AC! 6 MUHAMMAD IS V. A Q K H A N , J HASSAN TOOR and versus Shahzads BURHANDDOIM and 4 Others Respondents Writ Petition No, 422/81, decided on 4-3-1984 , (i) Writ Jurisdiction—

Concurrent findings of facts~-!nterferene with — Held: High Courts and Supreme Court to seldom interfere with concurrent finding of facts in writ jurisdiction—Provisional Constitution Order (CMLA's 1 of 198D--AH 9. [P, 42 JD 1969 SCMR 16 ref, (ii) Writ Jurisdiction— — Exercise of—Plea riot raised before lower courts—Agitation of—Plea raised in writ jurisdiction taken neither in appeal before Additional Commissioner nor in revision before Additional Home Secretary—Held: Point never raised before lower courts not to be allowed to be agitated for first time in writ jurisidiction of High Court. [P,. 42 ]C PLJ 1974 SC 35 rel. (ffi) Writ Jurisdiction— — Exercise of—Recommendations of Judicial Council (though appended with) not challenged in previous writ petition--Held; Petitioners not to be entitled in law to re-agitate th^ir grievances against recommendations of Judicial Council in second writ petition--Provisional Constituion Order (CMLA's i of 1981)--Art. 9. [P •. 41 ]A PLD 1965 SC 254; 1969 SCMR 102 1971 SCMR 602 ref . (iv)Writ Jurisdiction— — Facts—Complicated questions of—Inquiry into--Grievance of petitioners raised in writ petitions pertaining to title of land—Held: Superior courts to seldom entertain such petitions particularly when complicated questions of facts be involved therein—Provisional Constitution Order (CMLA's 1 of 1981)--Art. 9. [P. 43 ]E 1968 SCMR 145 rel. (v) Natual Justice:— — Audi alteram partem —Rule of—Applicability—Petitioners afforded every opportunity to defend case—Additional Commissioner (in appeal) and Additional Secretary (in revision) also hearing petitioners in detail while dealing with allegations raised by them—Held: Grievance of being not heard, if any, sufficiently got cured in circumstances. [P , 41 JB PLD 1959 (WP) Karachi 669 ref, (vi)Provisional Constitution Order (CMLA's 1 of 1981)— — Art. 9--See: Writ jurisdiction. Mr, Sardar Khan, Advocate for Petitioner. Mr, Zahoorul Haq, Advocate & Mr. Tariq Pervaiz, Advocate for Respon­ dents. Date of hearing: 4-3-1984 JUDGMENT Muhammad Ishaq Khan, J--This order in W.P. No. 422/81 will also dispose of connected W.P.Nos. 423/81, 432/81 and 543/82, as common questions of law and fact are involved in all the four writ petitions. 2. In. W.P.No, 422 of 1981, Hassan Noor and five others have challenged the orders of respondents 2,3,4 and 5, namely, Judicial Council, Chitral; Deputy Commissioner, Chitral; Additional Commissioner, Malakand Division; and Additional Secretary, Government of N.W.F.P., Home and Tribal Affairs Department, Peshawar. The grievance of the petioners is that they are the owners of different parcels of land measuring about 27 'chakoram' situate in viiiage Lusht, tehsi! and district Chitral, and that the impugned orders passed by the aforementioned respondents 3,4 and 5 dated 21-1-1978, 23-1-80 and 22-10-1981 be declared as without lawful authority and of no legal effect, and the petitioners be declared as owners, in W.P. No. 423/81, Ghulam Hussain and 9 others have challenged the orders of Judicial Council, Chitral; Deputy Commissioner, Chitral; Additional Commissioner, Malakand Division; and Additional Secretary Home. The petitioners have claimed ownership of different parcels of land measuring 72 'chakoram' situate in different Lusht and Shato-Khora, tehsil and district Chitral. In W.P. No. 432/81, Ajab Khan and five other have similarly claimed ownership of different parcels of land measuring 55 'chakoram' in villages Lusht and Shatu-Khora, tehsil and district Chitral. In W.P. No. 543/82, Dana Khan and 2 others have claimed ownership of different parcels of land situate in village Lusht, tehsil and district Chitral. 3. The following points were urged by Mr. M. Sardar Khan, learned counsel for the petitioners in W.P, No. 422/81, which were adopted in the other writ petitions:- (1) That under the customary laws of Chitral (then prevailing), all cases of civil nature instituted before the Deputy Commissioner were first referred for enquiry to S.D.A. and upon receipt of his report were sent by the Deputy Commissioner, to the Judicial Council and the report of the S.D.A. was 'sine-^ua-non' for further pro­ ceedings by the Judicial Council and since Tn the case in hand, no such enquiry was made nor any report sent to the Deputy Commissioner by the S.D.A., therefore, on the application of Shahzada Burhanuddin, reference to the Judicial Council was in vsoiqfjon of the customary Saw and void. That the Judical Council did not give any reasonable and fair opportunity to the petitioners and, therefore, the entire proceedings were void; and, That the proceedings before the Judicial Council were biased. 4. We have also heard the learned counsel for the respondent (Mr, Zahoor-ul-Haq, Bar-at-Law) and have perused the record with great care. The first point worth consideration is that four writ petitions were fiied by the same parties in this Court, whichwere dismissed by a judgment of the Division Bench, reported in Hassan Noor and 8 others vs. Deputy Commissioner, Chitral and 2 others (P.L.J. 1975 Peshawar 74), These writ petitions were decided on the 1st of April, 1975, The only point urg-;d in these writ petitions was that the order of the Deputy Commissioner, Chitral dated 16-10-1973 by which he took cognizance on an application filed before him by Shahzada Burhannuddin Khan, respondent, and ear-marked to S , D , A . Chitral for enquiry with the direction that his consequent report should be submitted to him within ten days, was without lawful authority. The only contention raised in the reported case was that after corning info being :-> the former state of Chitral of Regulation Mo. 1 of 1974, the Deputy Commis­ sioner had no jurisdiction to take cognizance of all subsequent proceedings based on the order of Deputy Commissioner dated 16-10-1973. As mentioned earlier, these writ petitions were dismissed on 1-4-J975. 5. It is relevant to remark that trie Judicial Council forwarded its recommendations to the Deputy Commissioner oh 11-10-1974, copy appended to the writ petition as annex M'. As such the petitioners are not entitled , in law to re-agitate their grievances against the recommendations of thej Judicial Council in a second writ petition, which they had not challenged I in W.P.No. 361/74 alongwith 3 other writ petitions, which was stil! pending) in this Court. This being the position, the attack against the Judicial Council that it was biased and that it had not given proper hearing to the petitioners and that in the absence of enquiry by the S.D.A, the proceedings before the Judicial Council were illegal, is not available to the petitioners in the second writ petition. Reliance can. conveniently be placed on the authorities reported in Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore and another (P.L.D. 1965 Supreme Court 254); Muhammad Suleman and another v. Settlement Authorities and others (1969 SCMR 162) and Abdul Ghafoor v. Settlement and Rehabilitation Commissioner, Karachi and 3 others (1971 SCMR 602). The gist of the above authorities is that a litigant is not allowed to split up his grounds to seek relief in respect of same cause of action ar j i-ake different petitions at different times. 6. Coming to the second contention of the learned counsel for the petitioners that the Judicial Council did not give them a fair opportunity, it is held that the contention is without any force. The order sheets will sufficiently demonstrate the factual position that the petitioners were given every opportunity to defend thei! 1 cases, but assuming for the sake of arguments without conceding that their grievance was genuine, then the same lacuna got cured when the matter went up in appeal to the Additional Commissioner, Malakand Division who disposed of the appeal on 23-1-1980. The order of the learned Additional Commissioner (respondent No. 4) suffi­ ciently demonstrates the factual position viz-a-viz the grievance of the petitioners that the members of the JudicfaT^TJouTTcil did not give proper opportunity to the petitioners for hearing and also that the members of the Judicial Council were biased against them. To crown it further, the peti­ tioners pj i'ferred a revision-petition before respondent No. 5, who, by his TsIcT detailed order dated 22-10- 1981, dismissed the same dealing, in fuii det'iUs, with the aSiega?': 13 rs!,;ed ':••>•' .he O'-titio-i-- •••?.•; ''in ;hjs view of the >n«t".-~, we get support from a FuU i.Vnch author;'?" 1 - tyorted in Mufomma:! Lufcatj and another v. Dr, Ssidudrtifi Swsleh -Mrf mother 'P.L.D, 1359 OV,F) Karachi 889] wherein the observations nuKfe run as under:- "Natural justice—Denial of hearing 1 in f'. ! o>,'r ! of first inst.Rnro, bt't party heard by appellate Of '-evipio'i Csv,:-? -whether constitutes failure of natural justice, 8. In the cases in hand, there is a concurrent finding of facts by the four forums, namely, Judicial Council. Deputy Commissioner, Chitral, Additional Commissioner, Malakand Division, and Additional Home Secretary, N.W.F.P. In such a .situation. High Courts and the Supreme Court seldom interfere with s-.-eh a concurrent finding of facts in writ jurisdiction. If any authority is needed on the point, the authority reported in Muhammad Aslam Khan v. Atts Mohammad and 8 others (1969's-CMR 16} can be cited with advantage, wherein it was heid as under:- "Constitution of Pakistan (1962), Art, 98. Question of fact-Concurrent finding by tribunals below- Finding cannot be disturbed unless based on no evidence-High Court, held, justified in not going behind finding in writ jurisdiction-Special leave 'o Appeal to Supreme Court, refused." (TQM) Petition dismissed

P L J 1984 S C (A J K) 1 P L J 1984 S C (A J K) 1 [ Review Jurisdiction ] Present : RAJA MUHAMMAD KHURSHID KHAN, C. J. & SHER ZAMAN CHAUDHRY, J MUHAMMAD SHARIF—Petitioner versus MUHAMMAD IBRAHIM and 10 Others—Respondents Civil Misc. Petition No. 18/M. R.of 1979, decided on 26-2-1984. (i) Araicus Curiae—

Act as—Court—Direction by— Held : Only disinterested adviser or advocate having no connection with any party to be required by Court to act Amiens curiae [P. 4] C Chambers Twentieth Century Dictionary ; Readers Digest Great Encyclopaedic Dictionary & Websters' Third New International Dic­ tionary ref. (ii) Arnicas Curiae —

Act as—Requirement of—Court requiring services of lawyer not engaged in case— Held : Such court only to ask lawyer to act as ami-cus curiae - Held further : It being court's prerogative to ask counsel to act as amicus curiae no counsei of his own to be heard as such [Pp. 3 &41B&D PL D 196! SC 23 7 ref (Hi) Supreme Court— ——Review jurisdiction of—Petition—Competency of—Petition for review of judgment in appeal not drawn up and moved by Advocate representing petitioner in appeal—Held : Petition to be dismissed on such short ground (alone). [P. ] A (iv) Review—

Power to—Judgment sought to be reviewed passed before court empowered to review judgments passed and orders made by it—Held : Review petition to stand disallowed—Supreme Court—Review juris­ diction of. [P. 4] E (?) Seprezne Court- ——Review jurisdiction of— See : Review. Qazi Abdul Ghafoor, Advocate for Petitioner. Raja Muhammad Siddiq, Advocate for Respondents. order Raja Muhammad Khurshid Khan, C. J.—Through this petition the peti­ tioner seeks review of the judgment, passed by this Court on 7-4-1979, on various grounds which need not be recapitulated here. 2. The petitioner, it may be stated, was respondent in the appeal (Civil Appeal No. 24 (R. O.) of 1978) and was represented by Ch. Muhammad Taj Advocate while Muhammad Ibrahim, non-petitioner herein (the appellant in the appeal), was represented by Raja Muhammad Siddique, Advocate. The appeal ended in success and the judgment passed by a learned single Judge of the High Court on 18-7-1973 against Muhuannad Ibrahim, respondent herein, was discharged vide judgment dated 7-4-1979. 3. This petition which, without the permission of the Court as stipu­ lated under the Supreme Court Rules, was drawn up and moved by Qazi Abdul Ghafoor, Advocate, on 20-5-1979, for its being contrary to law, is liable to be dismissed on this short ground. 4. Besides, the review petition, it is significant, pertains to the period when this Court had no review powers. The question as to whether the review of an order pertaining to the period when this Court was not clothed with the powers of review is competent came up for consideration in a re­ view petition titled Ajaib Hussain v. Mohammad Fazil (Civil Review No. 1 of 1980). The petition, vide, order dated 17-5-1983, was disallowed with the following observations :— "Considering the proposition in t'ne Vig"nt ~vtftrcA. tras fetWi &&%& sJsoxs. <£ is necessary to examine the language used in the Act 1980. It reads as already stated in the earlier part of this judgment :— 'The Supreme Court of Azad Jammu and Kashmir shall have power subject to the provision of any law and of any rule made by the Supreme Court to review any judgment pronounced or any order From the plain reading of the Act it becomes clear that the words used are clear, precise and unambiguous. The language used is a clear manifestation of the fact that the legislature intended it to be prospective in operation. In this view of the matter the review peti­ tion would be permissible in respect of only those judgments and ^rders which have been passed after the Act was legislated. A judgm-r.t of this Court which is now being sought to be reviewed was -aised on 30-5-1979. At the time it was passed, the Supreme Court had ik power of review either under the provisions of Interim Connituticn Act or under any other Saw. The matter in dispute had -naliv been decided and the controversy set at rest vide the impugned iudzment. It was only in June, 1980, when the Supreme Court for the "first time got invested with the review powers. As the Act has -r retrospective effect so the Supreme Court could not therefore, be aVked to exercise its newly acquired jurisdiction and power under the Review Power Act 1980, to correct the alleged errors and illegalities committed before the commencement of the Act. To hold otherwise would not only amount to putting a construction on the Act not warranted by the language used in it but it would lead to absurdity as there will be no limit to its going backward. In the ultimate analysis we find that Azad Jammu and Kashmir Sup­reme Court Review Power Act 1980 was prospective in operation. Onlv the judgments and orders passed after the Act could be open to review." 5. Before proceeding further we may state here that an application drafted bv Mr. Muhammad Yusuf Saraf, the learned Advocate, on 23-S- 198' was received in the Registry. The application contained a request that" permission may be given to the learned Advocate to appear and argue the case for the petitioner. This application was disposed of vide order dated 31-1-1984. The disposal was in terms that if the review petition is not competent there hardly arises any occasion to give special permission to Mr. Muhammad Yusuf Saraf to appear and argue the case. Copy of the order was also sent to the learned Advocate. 6. Now another application has been left by Mr. Muhammad Yusuf Saraf Advocate, in the Registry which, today, is placed before the Court for consideration. This application wants the Court that Mr. Saraf may be allowed to argue the petition as 'amicus curia'. 7. We have given our due consideration to this application but we could not persuade ourselves to accept it. In the first instance it is only the Court's prerogative to ask a counsel to act as amicus curiae. A counsel, on his own cannot be allowed to say that he may be heard as amicus curiae, There is no case in our knowledge in which such a method may have been approved by the Court. 8 Let us now determine the scope of the duties of an 'amicus curiae''. ' Amicus Curiae", according to the Chambers Twentieth Century Dictionary, means : — "a friend of the law-court, a disinterested adviser, not a party to the case: (wrongly) a friend in high quarters." Similarly, in the "Reader's Digest Great Encyclopaedic Dictionary" the word 'amicus curiae' is defined to mean :— "Disinterested adviser. (L, 'friend of the Court')." In "Webster's Third New International Dictionary" it is denned as under :—- "friend of the court : A by&tander that suggests or states some matter of law for the assistance of a court ; specif : a laywer that files a printed brief or makes an oral argument before an appellate court on behalf of a person affected by or interested in a pending case but not actually a party to it." 9. In view of the above it hardly needs an emphasis that only a dis­ interested adviser or an advocate who has no connection with a party can be required by a Court to act as 'amicus curiae'. In the instant case Mr. Muhammad Yusuf Saraf, the learned Advocate, vide application dated 23 8-1983, referred to above, sought permission of the Court to argue the review petition on behalf of the petitioner. Undoubtedly, according to his own application, he is interested in the petitioner. How can he be, in such position, allowed to act as 'amicus curiae' ? An Advocate, of course, can file a printed brief or make an oral argument on behalf of the person, though not a party, who stands affected by the decision. But in this case no such situation even is available to Mr. Muhammad Yusuf Saraf to allow him to act as 'amicus curias' 1 on behalf of the petitioner. I 10. It is elementary principle of law that only the Court which •requires the services of a lawyer not engaged in a case may ask him to act las 'amicus curiae' '. That is why in a case reported as 'Sir Edward Snelson |v. Judges of the High Court of West Pakistan Lahore' (P. L. D. 1961 S. C. 237), the learned Chief Justice observed that an Advocate appearing as 'amicus curiae' is entitled to fee as well as other expenses permitted by the Court. In view of the above the application of Mr. Muhammad Yusuf Saraf to allow him to argue this petition as 'amicus curiae' stands turned down. 11. On merits the review petition pertains to the period when this Court had no powers to review its order. Therefore, this review petition, while reiterating our view in the case referred to above, stands disallowed. Qazi Abdul Ghafoor, the learned Advocate for the petitioner, present in 'the Court, in view of the dictum in the case referred to above, does not want to prosecute this petition. (TQM) Petition disallowed.

PLJ J984 S C (A JK) 5 PLJ J984 S C (A JK) 5 [Appellate Jurisdiction] Present : RAJA MUHAMMAD KHURSHID KHAN, ACJ MUHAMMAD IBRAHIM—Petitioner versus RAJ MUHAMMAD and Another -Respondents Civil Petition for Leave to Appeal No. 51'M. R. of 1982, decided on 29-1-1984. (i) Limitation Act (IX of 1908)—

S. 5-Delay—Condonation of—Ignorance of law-Effect of—Held : Ignorance of law to be no valid ground for condonation of delay. [P. 8M 1980 SC MR 964 ref (ii) Limitation Act (IX of 1908)—

S. 5—Delay—Condonation of— Sufficient cause for—Held: Sufficient cause being circumstances beyond control of party, court to demand proof of sufficient cause for delay of every day—Held furtherShght negligence and not gross one to be condoned. [P, 9]£ (iii) LimitatioB Act (IX of 1908)—

S. 5—Delay—Condonation of—Valuable right accruing to other side by lapse of time— Held : Such party not to be lightly deprived of that right. [P. 9JF (iv) Limitation Act (IX of 1908)— ——S. 5—Delay—Condonation of—Mistaken advice by counsel— Ground for—Petitioner acting on advice of counsel in filing petition beyond time—Held : Advice by counsel must be shown to have been given with due attention. [P. 9\G AIR 1930 Outh 49 (2) ref. PLJ 1978 Kar. 131, 3974 SCMR 149. PLJ 1975 AJK 149 & PLD 1976 Kar. 104 distinquished. (v) Limitation Act (IX of 1908)-

S. 5—Delay—Condonation of—Sufficient cause for—Petitioner remaining negligent in not keeping himself abreast with true state of law—Explanation tendered for delay neither genuine nor convincing— Held : Nc sufficient cause having been made out for condonation of delay, petition filed beyond time to be dismissed. [P. 9]Z) & H (?i) Limitation Act (IX of 1908)—

S. 12—Time spent for obtaining copies—Exclusion of Judgments of District Judge and Sub-Judge not at all required to accompany petition for Jeave to appeal—Held : Time spent for obtaining copies of orders not necessary for filing petition not to be excluded. [P9JB&C AIR 1935 Lah. 341 & PLD 1949 Lab. 570 re/. Mr, Muhammad Sharif Tariq, Advocate for Petitioner. Mr, Muhammad Yunus Surakim, Advocate for Respondents. order This petition is barred by 24 days, it arises out of an order of a learned single Judge of the High Court passed on 29-5-1982. That order dismissed the appeal filed by the petitioner to challenge the order of the District Judge, Kotli, which affirmed the finding of the learned Sub-Judge, Kotli, which recorded that Raj Muhammad, respondent/pre-emptor herein, had prior right to purchase the suit land in the capacity of 'yakfadi' of the vendor as well as a co-sharer in the suit land in preference to Muhammad Ibrahim, vendee-petitioner to this petition. 2. The petitioner seeks condonation of the delay on the grounds that he was ill-advised by his counsel at Kotli that the petition for leave to appeal could validly be filed within 90 days and, therefore, time spent from 5-7-1982 to 11-8-1982, which comes to 38 days, in obtaining copies of the judgments of the Sub-Judge and that of the District Judge, if excluded, brings the petition for leave to appeal within time. He also submits that he had to attend his ailing wife and, therefore, could not follow the cause within time. 3. It may be observed that delay in tiling a petition under the Azad Jammu and Kashmir Supreme Court Rules, 1978, can be condoned for sufficient cause. The words "sufficient cause", of course, have no precise definition. Sufficiency of cause for condonation of delay, however, varies from case to case. It would, therefore, require to be seen as to whether sufficient cause in this case exists for condonation of delay. 4. Mr. Muhammad Sharif Tariq, the learned counsel for the peti tioner, as stated earlier, seeks condonation, inter alia, on the grounds : (i) that the learned counsel who appeared on behalf of the petitioner in the Court of first instance at Kotli ill-advised the petitioner that the copies of the judgments of the Sub-Judge and that of the District Judge were necessary for filing the petition for leave to appeal and, therefore, if the period from 5-7-1982 to 11-8-1982, spent in getting these copies, is to be condoned, this would bring the petition well within time; and (j'i) that the petitioner's wife was sick and her continuous treatmant had created impediment for him to pursue the matter in right earnest. 5. To support his contention for condonation, the learned counsel has cited 'Evacuee Trust Committee, District Hyderabad v. Muhammad Ismail and 2 athers (PLJ 1978 Karachi 131), S. M. Sadiq v. Settlement Commissioner and others (1974 S. C. M. R. 149), Sardar Ismail Khan v. Sardar Bagga Khan. PL i 1975 AJK 149) and Sayed Abad Ali Shah i. Ahmad Ali Qureshi and another) (PLD 1976 Karachi 104), 6. As agamst this, Mr. Muhammad Yunus Surakhvi, the learned counsel for the respondents, submitted : ;hat wrong advice of the counsel hardly constitutes sufficient cause for condonation of delay ; though there is even no proof in this case to hold so ; '.hat there is also no proof that the petitioner's wife was sick. H bas also never been claimed, as now contended, by the petitioner that h;s counsel at Kotli had ever given him a wrong advice that the copies of the judgments of the Sub-Judge and that of the District Judge were necessarily required for a valid presentation ; a petition for leave to appeal. Under section 12 of the Limitation Act as the copies of the judgments of the District Judge and that of the Sub-Judge were not required, the learned counsel maintained, time spent in getting the copies of these Documents cannot be deducted from the requisite time to file a petition for leave to appeal. He further contended that there is no proof in the shape of affidavit even by the petitioner's counsel or by the petitioner himself that wrong advice was given. After giving my considered thought to the arguments advanced at the bar, I am unable to persuade myself to condone the delay. My reasons are : 'Evacuee Trust Committee, District Hyderabad, v. Muhammad Ismail and 2 others (P. L. J. 1978 Karachi 131) cited by Mr. Muhammad Sharif Tariq is not applicable to the facts of the present case. It lays down : Now, it seems the rule is well laid down that mistaken advice given by a legal practitioner may in the circumstances of a parti­ cular case give rise to sufficient cause within the meaning of section 5 of the Limitation Act although such mistake must be made bonafide and not as a result of gross negligence. The principles contained in this rule may well serve as guide lines for exercise of discretion vesting in this Court under rule 4 of the High Court Rules referred to above. There can be no doubt that the question whether a Letters Patent Appeal was competent against the impugned judgment before us or a direct appeal lay to the Supreme Court, was an intricate question of law and was not free from doubt." Obviously, this case is distinguishable. In this case the appeal was filed before a wrong forum and as an intricate question was involved, condona­ tion was desirable which was allowed. Similarly, 'S. M. Sadiq v. Settlement Commissioner and others, (1974 S. C. M. R. 149) hardly advances the case of the petitioner. It decides that : "This petition is barred by 13 days, but, the learned counsel appearing in support of the petition, frankly concedes that the mistake was his, as he was under the impression thai during the iong vacation of the Supreme Court the time would not run. In view of the frank concession, we condone the delay and deal with the petition on merits," This case also is distinguishable inasmuch as the petition in this case was filed after the vacation under the wrong impression that during the vacation of the Supreme Court the time would not run, I wonder how this case can be made applicable to the facts of the present case. Similarly, 'Sardar Ismail Khan v. Sardar Bagga Khan' (P, L. J. 1975 AJK 149) and 'Sayed Abad All Shah Ahmad All Qareshi and another' (P. L. D. 1976 Karachi 104) are distinguishable and have their own facts to speak. 8, ft may be observed that the petitioner, as stated earlier, has not placed on record affidavit of the advocate at Kotii to indicate that wrong advice to the effect that the period for filing a petition for leave to appeal against the judgment of the High Court is 90 days was given to him. Thus there remains no ground to believe that some advocate at Kotli had igiven wrong advice to the petition for leave to appeal can be filed within J90 days. Besides, ignorance of law has never . been considered a valid Jground for condonation of delay. On the issue Mr. Justics Dorab Patel, J. (as be then was in 'Sultan Jan Kiian v. Islamic Republic of Pakistan and another (1980 S C M R 964) also opined that ignorance of law is no ground for condoning the delay, 9. The question regarding application of section 12 of the Limitation Act to an application for leave to appeal to His Majesty in Council also came for consideration before the Lahore High Court in case of Hari Ram v. Prem Nath and others (A. I. R. 1935 Lahore 341) and it was disposed of with the following observation : "Where it is not necessary for the applicant to file a copy of the decree with the grounds of appeal or the application section 12 has no application." 10. Similar question fell for consideration before Labour High Court in the case 'Gbulam Haider and another v. Abdul Ghani and others' (P. L. D. 1949 Lahore 570). The contention raised in that case was that section 12 of the Limitation Act did not apply to an application for leave to appeal to His Majesty in Council and, therefore, the petitioner was not entitled to the exclusion of the time which was spent in obtaining a copy of the judgment. Having noted this contention, their Lordships added: 'in our opinion this contention is well founded'. Then they proceeded to draw a distinction between sub-sections (2) and (3) of section 12 of the Limitation Act and found that ; "The language of subjection (2) as it now stands then contrasted with sub-section (3) clearly contemplates the exclusion from the scope of subsection (3) of the case of an application for leave to appeal." 11, Under Order XIII rule 5 (h) of the Azad Jamrnu and Kashmir Supreme Court Rules a petition for leave to appeal is to accompany the judgment or order sought to be appealed together with the grounds of appeal or application before the High Court. In the event a certificate under section 42 (11) (f) of the Azad Jammu and Kashmir Interim Cons­ titution Act, 1974, is required, the petition is also to accompany the order of the H;gh Court, refusing such, a certificate. I have noted this rolej only with the purpose that the judgments of the District Judge and thatjfi of the Sub-Judge are not at all required to accompany the petition foij leave tc appeal. 12. In view of the above, it requires no deep thought that the time spent for obtaining a copy of the order which was not necessary for filing a petition for leave to appeal cannot be excluded in computing the period of limitation. 13. The upshot of the whole discussion is that 1 do not feel satisfied that the explanation tendered for the delay is either genuine or convincing The pent oner nas been negligent in not keeping himself abreast with the/> true state of law. No sufficient cause thus is shown for condonation of the delay. Su5cient cause means the circumstances beyond the control of the part> and I do not know of any case wherein this definition of sufficient cause ha; been rejected. Slight negligence, of course, can be condoned but not the gross one. The Courts have always been strict in demanding proof of sufficient cause for every day which had expired after the ordinary period of limitation. 14. It must be remembered that when a valuable right had accrued to the other side by the lapse of time, he cannot lightly be deprived of that right. Eve- if I believe, though there is no evidence to support it, that the petitioner acting on the advice of his counsel filed the petition believing it within time, this would hardly make any case of condonation. It has invariably been held that the Court must be satisfied that the advice by the counsel was given with due attention. On the point A. I. R. 1930 Oudh -9 ('21 it has been held : This is the view which we take. When it is established in the rust place that a counsel has given advice with due care and attention but has nevertheless arrived at a mistaken conclusion, and that the appellant, misled by the advice, has in good faith filed iin appeal beyond limitation, then when compliance has been made with all these conditions a Court is justified in admitting an appeal filed after limitation but not otherwise." la Mew of the above, 1 hold that no sufficient cause has been madei out for condonation of delay and the petition being filed beyond time isl" hereby dismissed. | 15. Even otherwise, the well reasoned findings of the three Courts below to the effect that the respondent/pre-emptor has prior right of purchase in the capacity of an agnate of the vendor and co-sharer in the suit land, needs no interference as these findings are based on sound principles of appreciation of evidence in civil matters. In the result this petition for leave to appeal fails with costs. (TQM) Petition dismissed

PLJ 1984 SC (AJK) 10 PLJ 1984 SC (AJK) 10 (Appellate Jurisdiction) Present : Raja MUHAMMAD KHURSHID KHAN A. CJ. SHER ZAMAN CHAUDHRY, J THE STATE (AZAD JAMMU & KASHMIR GOVERNMENT)—Appellant versus Lt. Col. (Retd ) MUHAMMAD MANSHA KHAN and 16 Others—Respondents Criminal Appeal No. 20/Mzd. of 1979, decided on 30-3-1983. (i) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)— —S. 53—Emergency Powers Act. 1958—Vires of—Challenge to—Held : Emergency Powers Act, 1958 being meant for different purpose and having its independent existence, life of such Act not to be subordi­ nated to proclamation of emergency under S. 53 of Constitution Act, 1974. [P. 13] A (ii) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)—

S. 53—Emergency—Proclamation of—Council—Law made by during operation of—Held : In case ol any inconsistency between provisions of council law enacted in consequence of proclamation of emergency and provisions ol laws made in Azad Kashmir, council law to prevail and to remain alive throughout period of existence of emergency. [P. 13] B (iii) Emergency Powers Act, 1958— —Vires of Challenge to—Held : Act having stipulated immediate legislation to meet emergent situation (not so grave as to attract provisions of S 53 of Interim Constitution Act, 1974) and its pro­visionshaving also not militated any of provisions of Constitution Act (VIII of 1974), Act to remain on statute book. [P. 17] G & H (iv) Emergency Powers Act, 1958—

Vires of—Challenge to—Held : Act meant to maintain law and order situation, being not in conflict with any provision of Constitu­ tion Act, to be saved—Azad Jummu & Kashmir Interim Constitution Act (VIII of 1974)-S. 51. [P. 16] E & F (v) Constitution—

Law in conflict with-Held: Any law (or rule ha\ ing forje of law's iu conflict with constitution to he dead tetter. [P. 1>] ( (vi) Constitution

Interpretation of—Held : Constitution to be react as organic whole [P. 16] D (»ii) Emergency Powers Act, 1958—

Vires of—See : Azad Jammu & Kashmir interim Constitution Act (VIII of 1974}—S, 53. Rajs Muhamniaii Akram Khau, Advocate Genera! for AppelSan;, Sar4«r Muhammad Y«in Khan. Advocate t'os Respondents. JUDGMENT aja Muhammad Kburs'sid Khan, Actg. C.J.--This appeal by leave seek,;, to impeach the orders passed by the Azad Jammu and Kashmir High C.'untFuli Bench) on 18-3-197? and 14-4-1979 respective!}. By these 'Tilers — first ceing the shorl oue and the secern' a detailed one—the respondents' arre-'. and detention under scctionh 12 and 13 of the .:;v;-ge-,; Act, 1958, for their haviog delivered bjectionable speeches : the Government and taken part in prohibited political Lictsre quashed, inter alia, on the ground that the Emergency ? -Act, 195S. being ultra vires of section 53 .>f the Azad Jammu and K.ashn: Constitution Act, 1974 (hereinafter to be referred as the Co.-st^ut a -t. ! Q "4), is not a valid law. Irs the estimation of the High ncc of a proclamation, as stipulated under the provision? 53 of ihe Constitution Act, 1974, the Emergency Powers Act, . .s nc if_-ai backing and the prosecution arid detention of the respondcrts. i:-j?r :his Act, were illegal. 1. in support of the appeal it has been argued by Raja Muhammad Akrarn Khan, the learned Advocate General :— f; i that section 53 of the Constitution Act, 1974, has no nexus with the Emergency Powers Act, 1958, as this section is only available to the Chairman of the Council to direct the President to issue the proclamation of emergency in the event the Chairman is satisfied that a grave emergency exists in which the security of Azad Jammu and Kashmir is threatened by war or external aggression or by internal disturbances. This section is meant to meet such emergency which endangers the very existence of the State ; and (ii) that the Emergency Powers Act, 1958, is a valid document and it stands well protected under section 51 read with section 57 of the Constitution Act, 1974, and the learned Judges in the High Court misinterpreted the provisions of sections 51, 53 and 57 of the Constitution Act, 19/4, vis-avis the Emergency Powers Act, 1958, in holding that without a proclamation under section 53 of the Constitution Act, 1974, the Emergency Powers Act, 1958 would be considered as non-existent. 3. Sardar Muhammad Yasin Khan, the learned counsel representing the respondents, however supported the impugned judgments on the very grounds which were advanced by the High Court in support of its view point. It would appear that this case raises a short but interesting point of law and before the Supreme Court the point has come up to be decided for the first time. 4. We have given our deep consideration to the arguments advanced at the bar. The question posed is whether the Emergency Powers Act, 1958, is ultra vires of section 53 of the Constitution Act, 1974. The learned Judges of the High Court have observed that the Emergency Powers Act, 1958. is ultra vires of the Constitution Act, 1974, because the Presi­ dent of Azad Jammu and Kashmir had not issued any proclamation of emergency as envisaged under section 53 of the Constitution Act, 1974, In their view, the absence of such a proclamation destroys the Emergency Powers Act, 1958. 5. To understand the controversy, in the first instance, we deem it proper to reproduce section 53 of the Constitution Act, 1974. It eads : - (I) The President, if so advised by the Chairman of the Council that a grave emergency exists is which the security of Azad Jammu and Kashmir is threatened by war or external aggression or by internal disturbances, the President shall issue a proclamation of Emer­ gency, hereinafter referred to as the Proclamation. (2) A Proclamation shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and— (a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting ; and (b) shall, subject to the provisions of clause (a), cease to be in force upon a resolution disapproving the resolution being passed by the votes of the majority of the total membership of the joint sitting. (2A) Notwithstanding anything contained in sub-section (2), if the Assembly stands dissolved at the time when the Proclamation is issued, the Proclamation shall continue in .force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Council. (3) A Proclamation may be made before the actual occurrence of war of external aggression if the President is satisfied thai there is imminent danger thereof.' ' 6. The bare reading of section 53 (1) and (3) of the Constitution Act, 1974, makes us to believe that it stipulates the proclamation of emergency by the President on the advice of the Chairman of the Council when the Chairman is satisfied that grave emergency in which the very existence of the State is threatened by war or external aggression or by internal disturbances and in no other case. The proclamation of emergency under this section presupposes danger of war or external aggression to the security of the State to the satisfaction of the Chairman of the Council. 7. Section 53 of the Constitution Act, 1974, thus visualises a situation in the country altogether different for which Emergency Powers Act is meant. The proclamation under section S3 of the Constitution Act, 1974, presupposes a situation which endangers the very existence of the State and for that reason even the fundamental rights may be suspended during the period of proclamation. Section 53 of the Constitution Act, 1974, it would appear, recognises the proclamation of emergency when the Chairman of the Council is satisfied that a grave emergency exists in which the State of Azad Jammu and Kashmir faces imminent danger of war by way of external aggression or economic life of Azad Jammu and Kashmir is disturbed by internal disturbances beyond the power of the Azad Jammu and Kashmir Government to control. Obviously section 53 of the Constitution Act, 1974, has no nexus with Emergency Powers Act, 1958. That Act is meant for a different purpose and has its indepen­ dent existence. Its life cannot be subordinated to a proclamation of emergency under section 53 of the Constitution Act, 1974. 8. When a proclamation of emergency, under section 53 of the Constitution Act, 1974, is in operation the Council may acquire the power to make laws for Azad Jammu and Kashmir with respect to any matter not enumerated in the Council Legislative List or the concurrent list. In other words the Council launches a legal invasion in the legislative field of Azad Jammu and Kashmir. The capacity or the competence of the council to invade the Azad Jammu and Kashmir Legislative Assembly to make any law which ordinarily under the Constitution Act, 1974, it has no power to make increases. But here again if there is any inconsistency between the provisions of Council law enacted in consequence of proclamation of emer­ gency and the provisions of the laws made in Azad Kashmir, Council law, no matter whether passed before or after the law made in Azad Kashmir, shall prevail and the law made at the level of Azad Jammu and Kashmir to that extent will be repugnant so long as the Council law Continues to have effect. Such a law has the further attribute of remaining alive throughout the period of existence of emergency and the executive autho­ rity of the Council would also get extended to give directions to Azad Kashmir Government touching the security of the State. 9. It is thus manifest that section 53 of the Constitution Act, 1974, is meant to control the situation in times of the imminent danger to the State and to do so the Government requires an ample power even to suspend the fundamental rights. The need for emergency provisions and suspension of fundamental rights during such emergency is' obvious. The experience of the two great wars of the present century shows that in times of war it is essential for the safety and security of the State to arm the Government with extraordinary powers. In 'Ronfeidt v. Phillips' [(1918) f35 T.L.R, at 47s] Lord Justice Scrutton said :-- "The Courts, were always auMou.i to protect the liberty of the subject. They die! so both in the interest? of the subject" himself and in the interests of the State. In time of war there must be some modifications in the interests of the State. It had been said that a war could not be conducted on the principles of the Sermon on the Mount. It might also be said that a war could not be carried on according to the principles of Magnu Carta." In this connection, it would not be inappropriate to quote the following passage from the opinion of Lord Atkinson in 'K. v. Halliday, Ex parte Zaling' (1917 A.C. 260) : - "However precious the persona! liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, nan.sly. national success in the war or escape from national plunder or enslavement.'" 10. We would like to point out thai provision under section 53 of the Constitution Act, 1974, does not go beyond what is recognized by many countries and is based on the principle thai even "freedom is not free'. It would be better to quote Mr. S. M Zafar, Law Minister of the time, while piloting the Constitution (Fifth Amendment) B;H in the National Assembly of Pakistan, he said : — "The citizens have got to :,uatuJcr then rights in favour of the State when the State is confronted with a situation which can be said to be a situation of its own survival, when it is entangled in a war of life and death, if the Slate live;,, these rights live, and if the State does not live, these rights would also die." 11. The whoie argument and teasoning of the learned High Court to hold the Emergency Powers Act, !958, in the absence of the declaration of emergency as stipulated under section 53 of the Constitution Act, 1974 through separate proclamation, after 1974, as invalid ca"iu--t, therefore, b accepted as correct. 12, Section 51 of the Constitution Act, 1974, which reads :— '-Subject to the provisions of this Act, all Saws which, immediately before the commencement of this Act, were in force in Azad Jamrau and Kashmir shali continue in force until altered, repealed or amended by an Act of the appropriate authority. Explanation: —Tn this section,-- fas laws" mcludes Ordinances, Orders, rules, bye-laws, regula­ tions and any notifications and other legal instruments having the force of law: and (K -in force', in relation to any law, means having effect as law whether or not the law has been brought into opera­ tion," affords full protection to the Emergency Powers Act, 1958. The learned Judges in the High Court, it appears, failed to appreciate the true intents and purposes of the words 'subject to the provisions of this Act' under section 51 of the Constitution Act, 1974. 'Subject to the provi­ sion of this Act'means if any law is repugnant or militate against the provisions of the Constitution Act, 1974, such a law to that extent is to be struck down. The learned Judges of the High Court are of the opinion that as the Emergency Powers Act, 1958, is in conflict with section 53 of the Constitution Act, 1974, it is to walk out of the field of law. With due respect to the learned Judges, we cannot agree with them. There is no quarrel with the High Court that any law or rule having force of law whichl is in conflict with the Constitution Act, 1974, is a dead letter. But as saidr earlier the Emergency Powers Act, 1958, is not in any way in conflict withj any of the provisions of the Constitution Act, 1974; rather it is saved by section 51 of the Constitution Act, 1974. 13. Likewise reference to section 57 (1) of the Constitution Act, 1974, which reads : "The provisions of this Act shall override and have effect notwith­ standing the provisions of any law for the time being in force." is beyond the point. Section 57 (1) of the Constitution Act, 1974, is only meant to say that the Constitution Act, 1974, being the supreme law would override all subordinate laws. 14. The preamble of the Emergency Powers Act, 195S, which reads : "Whereas an Emergency has arisen which makes it necessary to provide for special measures to ensure the security of the State, public safety and maintenance of law and order, it is hereby enacted as follows,", has wrongly been interpreted to mean that the Emergency Powers Act, 1958, after the Constitution Act, 1974, being in conflict to the Constitution Act. 1974, is to be struck down. 15. The question whether the Emergency Powers Act, 1958, is intra vires or ultra vires of the Constitution Act, 1974, depends simply on examining the language of section 53 of the Constitution Act, 1974, and comparing it with the language used in the Emergency Powers Act, 1958. As said earlier, there is nothing underlying the Constitution Act, 1974, which makes the Emergenev Powers Act, 1958, as a nullity ; rather it saves it under section 51. 16. It may be stated here that the preamble of a statutes usually states general object and intention of the legislature in enacting it. Enact­ ing part is not exactly co-extensive with the preamble. Former, if expressed in clear and unequivocal terms, overrides the latter. The preamble of the Emergency Powers Act, 1958, would show that it only provides for special measures to ensure the security of the State, public safety and maintenance of law and order. Under this provision the fundamental rights cannot be suspended. 17. Sections 12 and 14 of the Emergency Powers Act, 1958, under which the respondents have been proceeded against, are reproduced below : "Section 12. (i) No one by word of mouth, or in writing or by singnals or otherwise, will spread reports, calculated to create alarm or despondency among the public or calculated to create disaffection to the Government, the armed forces, the police or any member thereof or any servant of the Government. (ii) No person shall contravene any order or direction issued under this Act or commit any act or by guilty of any omission or make a speech : (a) which is to the prejudice of the good order of the public safety ; ot (b) which is calculated to mislead or hamper movements of or imperil the success of or tamper with the loyalty of the armed forces." 'Section 14. The following acts are prohibited : (i) Strikes and agitations in educational public utility works and installations institutions and (") all political activities including processions and meetings both in public or private." 18. It would appear that under these sections the fundamental rights stipulated under the Constitution Act, 1974, cannot be suspended. Under sections 12 and 14 of the Emergency Powers Act, 195o, the President is expected to exercise his powers when a person is accused of an offence mentioned in these sections ; obviously it has to do nothing with the grave emergency. All that it intends is to inflict heavy punishment. This Act, therefore, does not conflict with any of the provisions of the Constitution Act, 1974. Fundarr utal rights can only be suspended when there is a pro clamation issued by the President on the advice of the Chairman of the Council under the provisions of section 53 of the Constitution Act, 1974. 19. It is also significant that the word 'grave' under section 53 of the Constitution Act, 1974, does not appear in the preamble of the Emergency Powers Act, 1958. It is fundamental that the Constitution must be read as an organic whole and considering the whole Constitution as one organic enactment, we are of the view that section 53 of the Constitution Act, 1974, covers altogether a different field and section 51 of the Constitution Act, 1974, saves the Emergency Powers Act, 1958, as it is not in conflict with any of the provisions of the Constitution Act, 1974. 20. The net result is that section 53 of the Constitution Act, 1974, is meant to give power to the Chairman of the Council to proclaim emer­ gency when the very existence of the country is in danger ; while the •Emergency Powers Act, 1958, is only meant to maintain the law and order fjsituation which has not attained the magnitude as to endanger the very (existence of the country which condition, as stated earlier, is a condition precedent for the satisfaction of the Chairman of the Council to take an action under section 53 of the Constitution Act, 1974. 21. There is a iot of difference between 'emergency' and 'grave emergency'. A proclamation under section 53 of the Constitution Act, 1974, is only required when there is a grave emergency, But Emergency Powers Act, 1958, only stipulates immediate legislation to meet the situa­ tion which may be emergent but not so grave as to attract the provisions of section 53 of the Constitution Act, 1974. 22. For the above stated reasons we accept this appeal, set aside the judgments of the High Court dated 18-3-1979 and 14-4-1979 and hold that the Emergency Powers Act, 1958, does not militate against any of the provisions of the Constitution Act, 1974, and it still remains on the statute book. However, as the situation by now has altogether changed, the Government would neither arrest nor prosecute respondents on the basis of the information gathered at that time. If, however, the respondents act now in contravention of the Emergency Powers Act, 1958, the Govern­ ment is at liberty to take action against them, (TQM) Appeal allowed.

P L J 1984 SC (AJK) 17 P L J 1984 SC (AJK) 17 (Appellate Jurisdiction) Present : ABDUL MAJEED MALLICK, J GHULAM MUHAMMAD—Petitioner versus CUSTODIAN OF EVACUEE PROPERTY, Azad Jammu & Kashmir Government, Muzaffarabadand 3 Others—Respondents Civil Petition for Leave to Appeal No. 44 of 1978, decided on 4-5-1983, (i) Administration of Evacuee Property Act (XII of 1957)—

S. 6—Custodian—Appointment of— Held : Person holding assign­ ment of Judge of High Court even for one day and leaving same on account of some other assignment to be competent to be appointed as custodian. [P. 201C (5i) Jurisdiction—

Objection to— Held : By acquiescence or waiver (though) no jurisdiction to be conferred on Tribunal, party participating in pro­ ceedings before Tribunal without any objection not to be subse­ quently allowed to raise objection as to jurisdiction (in writ juris­ diction of High Court). [P. 2}E (iii) Leave to Appeal— — .—Grant of — Important matter of public policy or law point neces­ sitating decision of Supreme Court raised — Held: Leave to be granted (in circumstances). [P. 2!]G (i?) Tribunal — -- Jurisdiction of — Objection to — Raising of in writ jurisdiction — Objection as to jurisdiction of Tribunal not raised before Tribunal- Held : Grievance of usurpation of jurisdiction not to be allowed to be raised in writ jurisdiction of High Court— Azad Jammu & Kashmir Interim Constitution Act (VI 11 of 1974)— S. 42, [P. 20]Z> (t) Interpretation of Statutes— ------ Definition clause — Meaning assigned under— Departure from — Held : Departure or transgression from meanings assigned to words and terms under definition clause of statute not to be permitted. iP. ffi) latrepreiatioa of Statutes — —Statute— Text of— Construction of — Held : Nothing to be imported or added to text of statute or obliterated as surplusage. [P. ]B I'tii) Writ Jurisdiction— - — Tribunal — Proceedings before — Jurisdiction -Objection as to — Held : Failure of party to raise point of jurisdiction before Tribunal to preclude it from claiming quashment of proceedings by extraordi­ nary remedy of unit— Azad Jaramu & Kashmir Interim Constitution Act (VIII of 1974)— S. 44. [P. 21]F t?iii) Azad Jtmmu & Kashmir Interim Constitution Act (VIII of 1974)— — —S. 44— See : Tribunal. (ix) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)— ------ S. 12 — See . Writ Jurisdiction. Ma| Muhammad Haaif Khan, Advocate for Petitioner. Mr. M. S, Farooqui, Advocate for Respondent No. 1. Sh. Abdul Aziz:, Advocate for Respondent No. 2. Raja Muhammad Akron

Khan, Advocate General for Respondent N'os. 3 & 4, order An evacuee shop No. 148, situate in iVIuzaffarabad city, is the bone of contention between the parties. The shop was allotted to one Muhammad Iqbal, who surrendered it in favour of the petitioner for a sum of Rs. 5,500 on which Rehabilitation Commissioner allotted the shop to the petitioner en 16th October, 1969. Aziz-ud-Din. non-petitioaer No. 2, who was also interested in the allotment, immediately after knowing preferrfd re<. i-.iyn against the allotment order before jh Custodian. The learned Custodian accepted the petition and discharged the order of allotment. The revision petition was instituted on August 12, 1972 and disposed of on September 8, 1973. The petitioner sought quashment of the order of Custodian by invoking special jurisdiction of the High Court in a writ petition. The learned single Judge refused to inter­fere with the impugned order. Now leave is sought to impeach that order of the High Court. 2, The main objection raised in the petition is that the learned Custodian had no jurisdiction to decide the question of allotment as on the day of his appointment he did not possess requisite qualifications to be a Custodian. 3. It is admitted in para. 2 of the petition that Mr. Justice Malik Muhammad Aslam Khan, Custodian (as he then was), was appointed as Additional Judge of the High Court in between 13-2-197! and 26-11-1973. In addition to that in his affidavit and written objections Mr. Justice Malik Muhammad Aslam Khan expressly stated that he was appointed as Additional Judge of the High Court much before his appointment as Custodian. The affidavit and written objections were not repudiated by a counter affidavit or other evidence. Thus the facts brought on the record sufficiently proved that Mr. Justice Muhammad Aslam Khan was appointed Additional Judge of the High Court prior to his appointment as Custodian. 4, The qualifications for the appointment of the Custodian are des­ cribed under section 6 of the Administration of Evacuee Property Act, 1957, as adapted in Azad Jammu and Kashmir, It is provided that the Government shall appoint one or more persons as Custodian by notifica­ tion in the official gazettee. Subsection (2) of section 6 provides that any person, who is or has been a Judge of the High Court, is qualified to be appointed as Custodian. The objection is that Mr. Justice Malik Muhammad Aslam Khan was not qualified for the post as on the date of his appointment he was neither a sitting nor a retired Judge of the High Court, In my opinion the suggestion of the learned counsel for the peti­ tioner is untenable. 5. In order to ascertain the meaning and scope of the term 'Judge' we have to advert to the relevant law, Mr. Justice Malik Muhammad Aslam Khan was appointed as Custodian on February 13, 1971 and the law in force at the relevant time was the Azad Jammu and Kashmir Government Act, 1970, Courts and Laws Code Act, 1949 and Kashmir Service Regulations. Section 25 of the Azad Jammu and Kashmir Govern­ ment Act, 1970, pertains to High Court. Government Act 1970 and Courts and Laws Code Act 1949 are silent on the definition of 'Judge. However, in the Kashmir Service Regulations, Vol. II, at page 154, Appendix XX (a), 'Judges' are shown to include Additional Judge of the High Court. Government Act of 1970 was amended in August, 1971, by amendment Act of 1971, whereby subsections (4) to (8) were added to section 25 of the Government Act of 1970. Subsection (7) of section 25 contained a provision that if at any time a Judge of the High Court was absent or unable to perform his functions due to illness or for other cause, any person qualified to be appointed as Judge of the High Court shall be appointed Additional Judge for the purpose or period for which the Judge is absent or otherwise unable to perform functions. By repeal and with certain modifications of Government Act, 1970, the Legislature re-enacted the Act, called as "The Azad Jamrnu and Kashmir Interim Constitution Act, 1974". Under section 2, relating to definition, the term 'Judge' in relation to the High Court, includes the Chief Justice and an Additional Judge of the High Court. From the aforesaid provisions of law it is reflected that the term 'Judge' includes an Additional Judge. An identical provision exists in the Constitution of Pakistan. It is also noted that qualifications for the appointment of the Judge or Additional Judge of the High Court are the same. Thus in standard and status a person who is in possession of qualifications requisite for the appointment of an Additional Judge is qualified to be appointed as Judge of the High Court, 6. It is well accepted rule of construction that words and terms are 'igiven the meaning assigned to them under the definition clause of a (statute. Departure or transgression from such, meaning is not permitted. Applying the principle to the instant case it is seen that the term 'Addi­ tional Judge' has no other meaning except the one given in the relevant law. The qualifications contained in section of the Administration of Evacuee Property Act clearly indicate that a person, who is or has been a Judge of the High Court, is eligible to be appointed as custodian. The legislature used the language of the section with the intention to prescribe qualifications for custodian identical to those for the Judge of the High Court. The object was to have a person appointed as custodian of the same qualifications and status as that of Judge of a High Court. One of the rules of interpretation is that nothing is to be imported or added to the text of a statute or obliterated as surplusage. On this principle it cannot be allowed to suggest that the words 'has been" are equivalent to the term'retired'. Its plain meaning is and it includes a person who has Functioned as Judge of the High Court or held the post of Judge of the High Court, irrespective of period of limitation or number of cases decided by him. In my view, a person who held the assignment of a Judge of High Court even for a day and left it on account of some other assign­ ment, was competent to be appointed as Custodian, In the circumstances, I find no reason to disagree with the learned single Judge and hold that the learned Custodian, who recorded the impugned judgment, was qualified and competent to be appointed as Custodian and in consequence thereof invested with the jurisdiction to record the impugned order. D 7. The other aspect of the case resulting in refusal to grant leave is that objection to his jurisdiction for want of requisite qualifications for his appointment, was not raised before the Custodian. The petitioner participated in the proceedings before him and it was only when the deci­ sion went against him that he invoked special jurisdiction by writ to draw attention of the High Court to the alleged usurpation of jurisdiction. The consensus in lodo-pak is that objection to jurisdiction of a Tribunal can only be raised in a writ petition when such an objection was also raised before the concerned Tribunal. The rule was introduced by the English Courts but it has been consistently adhered to in Indo-Pak. The grievance to usurpation of jurisdiction cannot be allowed to be raised in a writ petition unless certain objection to jurisdiction is taken before the Tribu­ nal whose order is being challenged, The object is that the High Court is entitled to know as to what the Tribunal has to say about its jurisdiction. The other aspect of the rule is that the party who participated in the pro­ ceedings without objection acquiesced by its behaviour, although by acquiescence or waiver no jurisdiction is conferred on the Tribunal. This view finds support in Ghulam Mohi-od-Din's case (P. L. D. 1964 S. C.J£ 829) and 'G. M. T. Society v. Bombay State ' (A, I. R, 1954 Bom. 202). Precisely on this principle failure of a party to raise point of jurisdiction before the Tribunal precludes it from claiming quashment of proceedings by extraordinary remedy of writ. In the instant case objection to jurisdic­tion, admittedly s was not raised before the Custodian. In case the Custo­ dian would have recorded order of allotment in favour of the petitioner, the High Court or this Court least couid have heard of grievance of the petitioner. The grievance was brought to the notice of the High Court and this Court as the decision is recorded against the petitioner. The learned single Judge of the High Court has rightly refused to quash the impugned order. 8. Leave is granted when an important matter of public policy or law point necessitating decision of this Court is raised. In the instant! case, on facts, it is established that Mr. Justice Malik Muhammad Aslamj Khan was qualified to be appointed as Custodian. For the reasons dis­ cussed above there is no substance in the petition to grant leave : The petition is, therefore, dismissed. (TQM) Petition dismissed.

P L J 1984 S C (AJK) 21 P L J 1984 S C (AJK) 21 ( Appellate Jurisdiction ) Present : RAJA KHURSHID KHAN, Actg. C.j. & SHER ZAMAN KHAN CHAUDHRY, J. M. MUZAFFAR WAFFA—Appellant versus AZAD GOVERNMENT & STATE OF JAMMU & KASHMIR Through Chief Secretary, Muiaffarabad and Another—Respondents Civil Appeal No. 10 Mzd. of 1983, decided on 18-2-1984. (i) A/ad Jamma A Kashmir Civil Servants Act, 1976 — 3)—Promotion ou probation—Failure to complete training—• Effect of—Person promoted on probation failing to complete training despite availing of all chances within probationary or extended period -Held : Such person to be reverted to his original post — Appellant reverted to his original post without being afforded two further opportunities within probationary period of two years— Held : Service Tribunal having erred in holding that appellant to vahdly avail only one chance to complete training, appeal against judgment of Tribunal to succeed and appellant to be considered to occupy his post since date of promotion— Held further : Such pro­motion, however, to be subject to his passing examination within probationary period available to him at time of his reversion to his original post. [Pp. 26, 27, 28 & 29 ] E, G & J (ii) Interpretation of Statutes—

Principle of— Held : Courts always to lean towards reasonable interpretation of statute. [P. 25] A (in) Interpretation of Statutes—

Literal construction — Effect— Held : Literal construction when leading to repugnancy or to result contrary to good sense, court to add words to provision to be construed reasonably. [P. 25] B (iv) Interpretation of Statutes—

Beneficial construction—Rule of—Applicability— Held : In deter­ mining general object of legislature on meaning of language in any particular passage, intention appearing to be most in accord with convenience, reason, justice and legal principles to be presumed to be correct one in all cases of doubtful significance. [Pp. 25 & 26} C (t) Interpretation of Statutes—

Legislature—Intention of—Held : Legislature not to employ word not carrying out purpose conveyed by it in explicit terms. [P. 26] D (vi) Interpretation of Statutes—

Legislature—Intention of— Held : Legislature always to suppress mischief and advance justice. [P. 27] F Interpretation of Statutes by Maxwell (1962 Edn. p. 66) ref. (vii) Interpretation of Statutes—

Government orders, Acts and rules—Harmonius construction of— Held : Courts always to endeavour to harmonize Government orders, Acts and rules as far as applicable—Held further : When all orders be interlinked, intention appearing to be most in accordance with convenience, reason and justice to be gathered. [P. 28J H P L D 1956 F C 209 ref. Kh. Muhammad Saeed, Advocate for Appellant. Raja Mnhammrd Akrsm Khan, Advocate for Respondent. Messrs B. A. Farooqi, M. S. Farooqi, Manzoorui Hassan Gitlani and T. H, Tariq, Advocates as amid curia/;. JUDGMENT Raja Muhammad Khurshid Khan, Actg. C. i.~Vide Government Order No. Admin/2908-45/77 dated 13th December, 1977, which reads :— Muzatfar Waffa (a Government employee) appellant to this appeal, along with six others, was selected for promotion and appointed as §ection Officer in the Commerce and Industries Department. 2. The Government Order, it would appear, stipulates the following : — (i) That all the promotees would remain on probation for two years; (n) That the officers were to complete successfully training course of three months in the Federal Government Secretariate Training Institute, Rawalpindi; and (in) In the event the candidates fail to complete the training success­ fully they shall be reverted back to their original posts. It would appear that the Government Order neither stipulates success­ ful training prior to the termination of probationary period nor it says that a candidate will have to come out successful in one attempt. 3. The promotees were sent to the concerned Institution to undergo the training. All passed but the appellant unfortunately failed. For this failure he was reverted to his original post vide Government Order No. Admin. 15871-15884/77, dated 14th of December, 1977. The revision was, it is important, effected within the probationary period. 4. The appellant, aggrieved by the reversion order, moved an appeal before the Service Tribunal which, vide judgment dated 18-2-1982, was dis­ missed on the ground that the promotion order only allowed one chance to the candidates to complete the training succesfully and as the appellant failed to fulfil the condition the reversion order needs no interference. This appeal, by leave, seeks to impeach the said judgment of the Service Tribunal. 5. The principal question relates to the true interpretation of section 5 of the Azad Jamrnu and Kashmir Civil Servants Act, 1976, (hereinafter to be referred as the Civil Servants Act), under which the promotion order was made. It is significant that the learned Service Tribunal opines that the training of three months was governed by the rules of the said Training Institute which allowed two more chances to the appellant. If any trainee, under the rules of the Institution, failed to pass all the papers after avail­ ing of all the chances only then such an official could be reverted to his original post. But in the estimation of the learned Tribunal, the case of the appellant is distinguishable and cannot be brought under the rules of the Institution because the Government, in the instant case, had only allowed one chance to the appellant to pass the proposed training as opposed to general rules and practice of the Institution and the appellant having accepted the condition of promotion, cannot now turn round and say that the reversion of the appellant on his first failure was illegal and contrary to the rules and regulations either of the Government or the Training Institute. 6. Kh. Muhammad Saeed, the learned counsel for the appellant, has serious criticism regarding the approach made by the Service Tribunal to section 5 of the Civil Servants Act and the relevant rules of the Institution. In his view the appellant, under the provisions of section 5 of the Civil Servants Act, could be reverted back only if he failed to complete the re­ quisite training prior to the termination of the probationary period and not before. He also maintained that three chances within the probationary period could validly be availed of by the appellant and without allowing the appellant to avail all the chances, he could not be reverted. Thus the approach of the learned Service Tribunal, he maintained, is faulty to say that the Government could pass an order in disregard to the rules of the Institution which, inter alia, allowed three chances to a candidate to compl:ti the training successfully. He further submitted that before the expiry of the probationary period the appellant could not legally be reverted to his original post. 7. To have a correct view of the matter let us have a look into section 5 of the Civil Servants Act. It reads :-— 'Ml) An initial appointment to a service or post referred to in ^ectlon 4, not being an ad hoc appointment, shall be on such proration and for such period of probation as may be prescribed. (2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on such probation and for rjcb period of probation as may be prescribed. 3) Where, in respect of any service or post, satisfactory comp­letion of probation includes the passing of prescribed examination, test or course or successful completion of any training a person appointed on probation to such service or post who, before the exr.-.v of the original or extended period of his probation, has failed :o pass such examination or test or to successfully complete the 'oursc or the training shall, except as may be prescribed other­ wise:— if he was appointed to such service or post by initial recruit­ ment, be discharged ; or • -f he was appointed to such service or post by promotion or transfer, be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged. " (underlining is ours) It w Ould be noticed that subsection (3) of section 5 of the Civil Servants Act stipulates that satisfactory completion of probation includes the passing of prescribed examination, test or course or successful completion of any training before the expiry of the original or extended period of probation except as may be prescribed otherwise. 8. The main question, which falls for determination and which would resolve the controversy, is the interpretation of subsection (3) of section 5 of the Civil Servants Act. It is an elementary principle of law that the Court always lean towards reasonable interpretation of a statute. It is also well recognized rule of construction that where the literal construction would lead to repugnancy or to result contrary to good sense, the Court may add words to the provision to be construed reasonably. Though the Courts of law have nothing to do with the reasonableness or unreasonable' ness of a statutory provision, the reasonableness or otherwise of the inter­ pretation is relevant to interpret what the Legislature has said and in determining either the general object of the Legislature or the meaning of the language in any particular passage, the intention which appears to be THere in italics]. most in accord with the convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be the correct one. This is called the beneficial construction This beneficial construc­ tion of a document or statute has deep roots not only in our judicial system but in the judicial system throughout the World. Any interpretation in departure to this well settled rule may cause or perpetuate injustice and that is why such a method has always been shown disfavoured by the superior Courts. 9. With this background let us dow determine the meaning of sub­ section (3) of section 5 of the Civil Servants Act. The words "before the expiry of the original or extended period of his probation, his failed to pass such examination or test or to successfully complete the course or the training shall, except as may be psescribed otherwise" appearing in the section clearly indicate that the penalty for unsuccessful training can only be inflicted after the expiry of the probationary or extended period of pro­ bation, if no departure otherwise is permissible. The word "extended" clearly manifests the intention of the Legislature that penalty would, in the first instance, be permissible if a candidate fails to complete the train­ ing successfully within the probationary period and then within the extended period if so allowed by the Government. Had it been the inten­ tion of the Legislature to allow only one chance, the word "extended" Iwould lose all importance. Courts would not ignore the well settled •^proposition that the Legislature would not employ a word not to carry out |the purpose which it conveys in explicit terms. 10. Let us now determine the meaning of the words "as may be prescribed otherwise". Before we advert to interpret the words "as may be prescribed otherwise", we may make a reference to Rule 8 subrule (3) of the Section Officers (Probation, Training and Seniority) Rules, 964, (here­inafter to be referred as Section Officers Rules). Sub-rule (3) of Rule 8 of Section Officers Rules reads : "A probationer who fails to qualify in any subject or subjects in an examination referred to in sub-rule (1) shall be allowed two more chances to appear at the examinations to be held subsequently by the Commission in such subject or subjects," (underlining is ours) The above rule clearly shows that a probationer, who fails to qualify in any subject or subjects in any examination under rules, shall be allowed two more chances to appear at the examination to be held subsequently by the Comraisbion in such subject or subjects. These rules were framed in the year !964. When Section 5 of the Civil Servants Act in the year 1976 was enacted, the Legislature, it seems, was well aware of the provisions of sub-rule (3) of Rule 8 of the Section Officers Rules and that is why to avoid any conflict in the Civil Servants Act and Section Officers Rules, the words "before expiry of the original or extended period" have been employ­ ed in subsection (3) of section 5 of the Civil Servants Act. For the above stated reasons, we feel safe to hold that the appellant ould not be reverted to hi<; original post without affording him two further [Herc is italics] opportunities within the probationary period of two years and the learnedl Service Tribunal was in error in holding that the appellant could validlyl avail of only one chance to complete the training. 11. Now we take up the issue as to what is meant by the words "as may be prescribed otherwise". The word "prescribed", under section 2 subsection (1) (b) (i). is defined to mean "prescribed by rules". It is thus mainfest that unless the rales are not framed under the Civil Servants Act all orders are governed by the Act and the Government is incompetent to make any order in departure with any of the provisions of the Act. At the time the order of promotion referred to above was made by the Government no rules were framed by the Government. Naturally the provision of the sec­ tion was to govern the order which, as already stated, allows successful com­ pletion of the training prior to probationary or extended period. Section Officers Rules, however, were later made on 25-7-1978. But these rules were to come into force at once, therefore, they can have no retrospectivity to cover the case before us. 12. It would thus follow that no rules in Azad Kashmir, at the time the appellant was required to undertake the examination in Pakistan , were available to override any provision of the Civil Servants Act or to provide guideline suggesting any method otherwise than provided in the Civil Servants Act. Therefore, there is no escape but to hold that the working system and the rules of the Institution would govern the present case. The rules of the Institution, as said earlier, allow three chances for completion of the training. It is significant that the order of promotion also does not stipulate that the success in the examination should be in one attempt. All that it says is : The above observations, as said earlier, are in accordance with the provisions of subsection (3) of section 5 of the Civil Servants Act. 12. We are thus of the considered view that the order conveys the sense that an Officer sent to undergo the training was to complete the training in accordance with the rules of the Institution which allowed three chances. We cannot ignore the fact that if success in one attempt was necessary the probationary period of two years would lose all its sense and meaning. The order then should have been couched in terms that the appellant is promoted temporarily and if he fails to complete the training of three months in a single attempt he will stand reverted. It may be recalled here that certain important terms and conditions of service of employees in the service of the State were provided for and granted in the Civil Servants Act and these terms and conditions cannot adversely be affected without clear legislation by law or rules suggesting otherwise. 14. Our considered view, therefore, is that though the training of three months was necessary but it covered the whole probationary period of two years. This is the spirit of subsection (3) of section 5 of the Civil Servants Act. The Legislature, it is elementary, always suppresses mi chief and advances justice. Reference may be made to Maxwell on th Interpretation of Statutes 1962 Edition, page 66, wherein it is said : "It is said to be the duty of the judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language fails short of the whole object of the legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words." 15. In the nutshell the only plausible interpretation that can be made to subsection (3) of section 5 of the Civil Servants Act is that a person pro­ moted on probation for two years if despite availing of ail the chances G within the probationary or the extended period fails to complete the train­ ing then only he can be reverted to his original post and not otherwise. Therefore, the view taken by the learned Service Tribunal cannot be accepted. 16. It may be noted that the Courts have always endeavoured to harmonize Government Orders, Acts and rules as far as practicable. Here all the orders are interlinked and their intention has to be gathered which appears to be most in accordance with convenience, reason and justice, So was held in 'The Working Muslim Mission and Literary Trust, Lahore and the Civil & Military Gazette Ltd., Lahore v. The Crown' (P L D 19s6 F C 209). It was observed in that case : "It is a well-recognized rule of construction that where a literal construction would lead to repugnancy to good sense, the Court may add words to the provision to be construed. Though a Court of Law has nothing to do with the reason­ ableness or unreasonableness of a statutory provision, the reason­ ableness or otherwise of the interpretation is relevant to interpret what the Legislature has said, and in determining either the general object of the Legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be true one." 17. The very deputation of the officers to undertake training in Pakistan , it was also submitted, was in departure with the rules and law in Azad Kashmir. In this respect it was maintained that conditions for promotion could legitimately be prescribed by rules made under section 5 (3) of the Civil Servants Act and in the absence of such rules (as the case is before us) under the provisions of Kashmir Service Regulations pro­motion could be made subject to passing the test recognized under the Kashmir Service Regulations. He further submitted that under the pro­ visions of Kashmir Service Regulations only a test specified by the appoint­ ing authority to be conducted by the Selection Authority is recognized and the examination in any Institution beyond Azad Kashmir is not permis­ sible. As the appeal succeeds on other grounds, we leave this question open to be decided in a case in which its decision is absolutely necessary. For the above stated reasons, this appeal succeeds with costs. Conse- [uently the appellant will be considered to occupy his post as Section Officer since the date he was promoted as such. His promotion would, however, be subject to his passing the examination within the probationary period which was still available to him at the time of his reversion to his original post. The period shall be reckoned from the date this judgment is received by the Government. A copy of this judgment shall immediately be sent to the Chief Seor^e.ry for information. (TQM) Appeal accepted.

PLJ 1984 SC (AJK) 29 [Appellate Jurisdiction] PLJ 1984 SC (AJK) 29 [Appellate Jurisdiction] Present : RAJA MUHAMMAD KHURSHID KHAN, C.J. & SHER ZAMAN CHAUDHRY, J ABDUL KHALIQ-Appeilant Versus AZAD JAMMU & KASHMIR GOVERNMENT through Chief Secretary—Respondent Civil Appeal No. 44 of 1981, decided on 21-11-1983. (i) Azad Jammii A Kashmir Service Tribunal Act, 1975—

S. 4 — Appeal to Service Tribunal — Limitation for —Held : Count for start of waiting period of ninety days to be from date when period allowed for filing review petition ended and not from date when such petition (actually) filed. [P. 32] B PLJ 1982 SC 373 distinguished. (ii) Azad Jammu & Kashmir Service Tribunal Act 1975— — S. 4—Appeal to Service Tribunal—Limitation—Bar of—Adverse order convryed to appellant at earliest on 29-12-1980 while appeal to Service Tribunal filed on 27-5-1981— Held : Appeal in no way being time-barred, order of Tribunaldismissing same in limineas time-barred to be contrary to law. [P. 33] C (iii) Interpretation of Statutes—

Rule of—Held : Best rule of interpretation to be (to interpret) by plain reading of statute. [P. 32] A Mr. B. A. Farooqi, Advocate for Appellant. Raja Muhammad Akram Khan, Advocate General for Respondent. JUDGMENT Sher Zaman Chaudhry, J.—This appeal is directed against the judg­ ment of the Service Tribunal passed on 14-7-1981. The facts leading to the present controversy are that the appellant Kh. Abdul Khaliq, a D.S.P. was retired from service, vide Government order dated 27-12-1980. Feeling aggrieved by the order of his retirement passed by the respondent- Government the appellant filed a petition for review on 20-1-1980 which however remained either undecided or if disposed of, the findings were never conveyed to the appellant by the respondent. The appeal filed under section 4 of the Service Tribunal Act, by the appeliant challenging the legality of the Government. Order dated 27-12-1980 was dismissed by the Service Tribunal on 14-7-1981, on the point of limitation. 2. Feeling dissatisfied with the order of dismissal of his passed by the Service Tribunal a petition for leave to appeal was filed which was allowed by this Court, vide, its order dated 23-11-1981, to consider as to whether :— =in an appeal filed under section 4 (a) of the Service Tribunal Act the time allowed for filing the same would be ninety days plus the period allowed for filing review petition and a further period of ninety days which is the waiting period after filing the review as was submitted by the learned counsel for the appellant." 3. Mr. B. A. Farooqi, the learned counsel for the appellant, argued that the learned Service Tribunal failed to appreciate the true significance of section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975. The impugned order having been based on an incorrect interpretation of section 4 of the Act was therefore, according to him, bad in law and as such was liable to be set aside. Elaborating the point the learned counsel submitted that 30 days period allowed to an aggrieved civil servant under the terms of section 4 of the Act to file appeal in the Service Tribunal was applicable only if the order passed by the depart­ mental authority, whether original or appellate was final. If on the other hand an appeal or review against that order before the departmental authority was a condition precedent and where, before the final determina­ tion of such a review or appeal by the authority, appeal was filed under the proviso to section 4 of the Act, as was done in the present case, the period of limitation would be the time requisite for filing the review plus the waiting period of 90 days after which the review or appeal was to be made. As proviso (a) to section 4 does not prescribe as to within what period the appeal could be filed before the Tribunal after the expiry of waiting period so therefore, on the same analogy a further period of ninety days was available to a civil servant to file appeal after the expiry of the waiting period. The appeal, submitted the learned counsel, being within time was wrongly dismissed as time-barred by the learned Service Tribunal. The impugned order of dismissal therefore, according to him, could not be sustained. 4. Raja Muhammad Akrara Khan, the learned Advocate General, on the contrary submitted that in a case where an aggrieved civil servant has filed a review petition before the departmental authority, the period allowed to file appeal before the Tribunal, under proviso (a) of section 4 of the Service Tribunal Act would be ninety days from the date when the review petition was filed plus thirty days allowed under the main part of the section. Since the review petition by the appellant was filed on 20-1-1981 the period of ninety days as provided under the proviso would end on 20th April, ,1981. By adding thirty days as envisaged under section 4 of the Act, the appeal instead of 27th May, 1981 should have been filed on 20th of May, 1981. In this view of the matter the appeal before the tribunal having been filed 7 days beyond the period of limitation, the order under appeal was perfectly in accordance with law and open to no exception. In support of his contention the learned Advocate Genera! referred to 1982 S C M R 583. 5. We have carefully considered the points raised by the learned counsel for the parties. A plain reading of section 4 of the Service Tribunal Act, clearly shows that a civil servant aggrieved by an adverse order passed by the departmental authority can directly approach the Service Tribunal by way of appeal provided the order sought to be chal lenged was a final order and against which no appeal or review to the departmental authority was necessary under law as a condition precedent to an appeal before the Tribunal. The period of limitation to appeal to the Tribunal ; ,n such a case would be within 30 days of the passing of such order. 6. In a case where a civil servant, on the other hand aggrieved by an order passed by the authority could under law go in appeal or file review petition before the authority, he must first approach the authority by way of apoeal or review within the period prescribed under law before going in appeal to the Service Tribunal. 7. After having filed the appeal or review petition before the depart­ mental authority a civil servant could either wait till the time his appeal or review petition is finally decided, no matter how long does it take the departmental authority to take a decision and then in case of adverse finding, go in appeal before the Tribunal within thirty days or on the other hand after the expiry of ninety days of waiting period as stipulated under the proviso (a) of section 4 file an appeal before the Tribunal against the original adverse order passed by the authority. In a case where no appeal or review against an adverse order, before the departmental authority has been provided under law or if provided and the authority passes a final order on such a review or appeal, the period of limitation under the main part of section 4 of the Act would clearly be thirty days after passing of the original or appellate final order whatever the case may be. 8. The proposition needing determination in the present case however ] 5 . —• (.a) as to what would be the period of limitation where a civil servant after filing appeal or review before the departmental authority does not want to wait till the time it is finally disposed off ? (b) when precisely would the waiting period of ninety days start running, would it be from the date on which the review petition was actually filed or from the end of the period allowed for filing the review petition ? 9. The clear perception of the point involved and its proper resolu­ tion depends on careful examination and apprec ation of section 4 of the Service Tribunal Act which reads : — "Appeals to Tribunals. —Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal : Provided that— (a) where an appeal, review or representation to a departmental authority is provided under any law, regulations or rules for the time being enforced, no appeal shall lie to a Tribunal unless the aggrieved civil servant his preferred an appeal or application for review or representation to

<ich Hepartmental authority and period ol ninety days has elapsed from the date on which such appeal, application or representation was to be preferred." 10. The best rule of interpretation is by the plain reading of the statute. The language used in the statute, if clear and unambiguous, is 'best manifestation of the intention of the legislature. It is important to note that here in proviso (a) to section 4 of the Service Tribunal Act, the words used are "Period of ninety days has elapsed from the date on which such appeal, application or representation was to be preferred" and not as "was so preferred". It is thus clear that the count for the start of waiting jperiod of ninety days would be from the date when the period allowed jBlfor riling review petition ended and not the date when it was so Ifiled. 11. We have with utmost care gone through the report of the case titled 'Kadir Bux v. Province of Sind ' PLJ 1982 SC 373, on which reliance has been placed by the learned counsel for the respondent. In that case, it was no doubt held that the count down would start from the date on which such appeal, application or representation was so preferred. The learned Judges of the Supreme Court of Pakistan were justified in arriving at such a conclusion as the language of the proviso (a) to section 4 of the Sind Service Tribunal Act was to the same effect. The position however is different so far as the language employed in Azad Jammu and Kashmir Service Tribunal Act 1975 is concerned. It admits no such interpretation. The relevant provisions of both the Acts, if placed in juxtaposition and considered carefully, would make the difference between the two signi­ ficantly obvious. The words used in the closing part of the proviso (a) of section 4 of the Sind Service Tribunal Act are "was so preferred." Whereas section 4 (a) of the Azad Jammu and Kashmir Service Tribunal Act 1975 the words used are "was to be preferred." The principle thus enunciated in Kadir Bux's case is distinguishable and has no relevancy to the present case. 12. Adverting to the next point raised on behalf of the appellant, we are unable to agree with the learned counsel for the appellant that the period allowed for filing the appeal before the Service Tribunal after the expiry of waiting period of ninety days as required under the proviso would again be ninety days. The period of limitation for filing appeal before the Service Tribunal would be within thirty days of the passing of final order whether it be original or passed on appeal or review as provided under the main part of section 4 of the Act. The only difference is that if the appeal has been filed under the provisions of proviso (a) to section 4 then there is a waiting period of ninety days from the date on which such appeal or review before the authority was to be filed. So under the proviso bar has been placed on the right to appeal to the Tribunal. As statute providing limitation itself contains a proviso the period of thirty days would remain suspended. The limitation for filing appeal before the tribunal under the proviso would therefore be the period allowed when the appeal or review was to be made to the departmental authority plus the waiting period as stipulated under the proviso and a further period of thirty days as envisaged under the main part of section 4 of the Act and not the ninety days as has been submitted by Mr. B. A. Farooqi, the learned counsel for the appellant. 13. After having determined the true jmport of section 4 of the Service Tribunal Act aloagwith its proviso, we will now, proceed to consider as to whether the appeal filed by the appellant before the Service Tribunal was within the period of limitation or it was timebarred. The order of the appellant's retirement was passed by the authority on 27-12-1980, a certified copy of this order has been placed on the record as Anx. ; a ( . The copy has a noting on it to the effect that the original be immediately sent for information to Kh. Abdul Khaliq. D S.P. Authmaqam. The date of the noting entered by the Registrar Police Department under No. 14841 is as 29th of December, 1980. The period allowed for filing the review petition under section 21 of the Azad Jammu and Kashmir Civil Servants Act 1976 read with section 16 of the Azad Jammu and Kashmir Civil Servant (Efficiency and Discipline) Rules 1977 is sixty days. So the period of sixty days allowed for review petition plus ninety days waiting period as stipulated under proviso and a further addition of thirty days for filing the appeal after the expiry of ninety days if put together, the total would come to 180 days. In the present case the, adverse order was conveyed to the appellant at the earliest on 29th of December, 1980, so, therefore, the appeal having been filed on 27th of May, 1981 in no way could be treated as having been time-barred. The impugned order passed by the Service Tribunal dismissing the appellant's appeal in limine as time-barred, is therefore, contrary to law. For the foregoing reasons we accept the appeal and remand the appeal to be decided on merits. (TQM) Appeal accepted.

PLJ 1984 SG (AJK) 33 PLJ 1984 SG (AJK) 33 [ Appellate Jurisdiction ] Present : RAJA MUHAMMAD KHURSHID KHAN, A C J & SHER ZAMAN CHAUDHRY, J MUHAMMAD SHAMOON—Appellant versus MOHABAT KHAN—Respondent Civil Appeal No. 9/M. R. of 1981, decided on 26-2-1984. (i) Civi Procedure Code (V of 1908)—

O. XX, R. 14 & O XLI, R. 5—Pre-emption suit—Decree in—Sus­ pension of—Effect of—Pre-emption money—Deposit of—Reasonable time for—Trial Court while decreeing pre-emption suit irecting deposit of pre-emption amount by certain date—Appellate Court sus­ pending operation of decree two days before expiry of period fixed by lower court—Subsequently such court dismissing appeal without fixing new date for depositing decretal amount—Held : Decree-holder to (be competent to) deposit amount within reasonable time—Held : farther : Time fixed by trial court for depositing decretal amount to be fair and reasonable time though same to be reckoned from date of dismissal of appeal. [Pp. 36 & 37 ] A, B & D (ii) Civil Procedure Code (V of 1908)—

O. XLI, R. 5—Suspension of decree—Effect of—Appellate court suspending operation of order under appeal during pendency of appeal—Held: Party required to perform act by certain date not to be visited with penalty for not having performed same during period of suspension of operation—Held further : Dismissal of appeal to bring about restoration of original decree with all its contents and provi­ sions—Original time allowed by trial court, however, to (fairly) start running afresh from date appeal stands dismissed putting (an) end to stay order. [P. 36j C Raja Muhammad Siddiqne, Advocate for Appellant. Ch. AH Muhammad, Advocate for Respondent. JUDGMENT Raja Muhammad Khurshid Khan, ACJ — This appeal by leave is directed against the judgment and decree dated 29-9-1980 passed by the Azad Jammu and Kashmir High Court in Civil Appeal No. 27 of 1979. The facts which formed the background are that Muhammad Shamoon, appellant herein, in a pre-emption suit, was granted a pre-emptive decree on payment of Rs. 8000/- by the Court of original civil jurisdiction, Bhimber, and the amount was directed to be deposited in the Court on or before 31st of January, 1974. 2. Against this judgment of the learned trial Judge, Muhammad Shamoon filed an appeal before the District Judge, Mirpur, for reduction of the sale consideration and secured a stay order on 29th of January, 1974, in so far as it related to the deposit of pre-emption money to the effect that the deposit order shall remain inoperative during the pendency of the appeal. 3. The appeal was, however, dismissed by the District Judge on 3 rd of May, 1977. The date for deposit by 31st of January, 1977, obviously had already expired. No new date was fixed by the learned District Judge for depositing the decretal amount. The appellant pre-emptor, however, on his own, deposited the amount in the trial Court on 24-7-1977 which deposit was objected to by Mohabat Khan, the vendee-respondent herein, on the ground that the petitioner, failed to deposit the amount within the period fixed by the trial Court and also slept over the matter after dismissal of the appeal and this fact had caused dismissal of the suit under the rele­ vant law. 4. The learned Sub-Judge, it may be stated here, found the plea of the respondent as genuine and so was unable to confirm the decree. The learned Sub Judge also held that he had no power to extend the period to deposit the decretal amount as he had no control over the matter. Appeal before the District Judge also failed and a learned single Judge in the High Court, as said earlier, vide order dated 29-9-1980, declined to interfere with the finding of the subordinate Courts. Hence this appeal to impeach the said judgment of the High Court. 5. It may be stated here that the appeal before the High Court was not competent. However, the learned Judge felt advised to dispose of as a revision petition. 6. Raja Muhammad Siddique, the learned counsel for the appellant, addressed lengthy arguments in support of this appeal but the crux of his submissions is that the learned single Judge had overlooked the fact that during the pendency of the appeal against the pre-emption decree the first appellate Court had suspended the operation of decree of the trial Court so , far as the deposit of pre-emption money was concerned and, therefore, the appellant could not possibly deposit the amount until the decision in the first appeal and by the time it was decided the time fixed by the trial Court for the deposit of the pre-emption money had expired and under Order XX rule 14 of the Code of Civil Procedure, the learned District Judge mast have fixed time afresh for making the deposit and this having not been done, the appellant cannot be made to suffer for the fault of the District Judge, In view of the above, it was contended that three year's period which is allowed for the execution of the decree or at least the period of appeal, i. e., 90 days permissible to the appellant to file an appeal against the judgment of the District Judge to the High Court would be considered to be a reasonable time to deposit the decretal amount in the absence of a clear order by the District Judge to make the deposit by a specific date or time. The dismissal of the suit for non-deposit of the pre-emption money in the above circumstances, according to the learned counsel, is a legal srror or at any rate it is a case of arbitrary exercise of discretion and needs to be discharged in holding tnat the deposit made by the appellant within one month and twenty days after the dismissal of his appeal by the District Judge is well in time. 7. As against this, Ch. Ali Muhammad, the learned counsel appearing for the respondent, submitted that the reasonable time, in the context of this case, would be only two days the time which was still available for making the deposit on the date when the appellate Court suspended the decree of the trial Judge. He controverted the stand of Raja Muhammad Siddique and submitted that ninety days, the time required to file an appeal, or three years time allowed for the execution of the decree cannot be made available to the appellant for making the deposit. If we do so, it would amount to legislation by the Court which is no function of the Court, He, however, submitted that the appellant had himself gone in appeal, secured the suspension of the order of the trial Judge regarding the deposit and had to be very vigilent in taking necessary steps arising from the decision of his appeal. 8. It would appear that the following three contentions were raised by Raja Muhammad Siddique before us for consideration :— (i) The learned District Judge should have fixed the time for deposit in his order while disposing of the appeal of the appellant. Reli­ ance is placed for the purpose on Order XX rule 14 of the Code of Civil Procedure ; (ii) There was sufficient ground for condonation of delay particularly when the original decree of the learned trial Court, so far payment of decretal amount was concerned, was suspended by the learned District Judge and the time actually fixed having already expired during the pendency of the appeal, and no time afresh has been fixed by the District Judge ; and (iii) Three years' time allowed for the execution of the decree or at least 90 days' time required to file an appeal, is to be allowed to the appellant to make the deposit. 9. After giving our dispassionate thoughc to the points of objection, listed above, we could not persuade ourselves to accept these contentions. So far as the first contention is concerned the decree of the learned District Judge was not of variation of the decree of the trial Court and, therefore, the provisions of Order XX rule 14, Code of Civil Procedure, could not be invoked. So far as the second contention is concerned, no doubt, it is correct that on 29th of January, 1974. the decree of the trial Court directing the appellant herein to deposit the amount in dispute by 31st January, 1974, was suspended ; this order of suspension remained operative only upto 3 rd of May, 1977, when the appellant's appeal ended in failure. Strictly speak­ ing the appellant could have, therefore, made the necessary deposit only upto 5th of May, 1977, the period which was left over after deducting the period during which the decree of the trial Court remained suspended under the order of the District Judge, This having not been done the appellant, after one month and twenty days, on his own, deposited the decretal amount and this period can hardly be considered to have fulfilled the legal requirements. In such like cases we think allowing only the remaining period of deposit, when the operation of the decree stands suspended by an appellate Court, may not be considered to meet the ends of justice. To us in cases of the type when the stay order is issued and no new date is fixed for depositing the decretal amount by the appellate Court, the B party can deposit the amount within a "reasonable time" and not within three years' (the period required for the execution of a decree) or ninety days' time requisite to file an appeal. 10. This brings us to consider as to what do we mean by "reasonable time" and how it should be construed ? The view expressed in the recent pronouncements is that the time for payment of pre-emption amount is always governed by the rule of ''reasonable time". The question arises as to how this rule is to be applied in a case where the appellate Court sus­ pends the operation of the decree and finally dismisses the- appeal without fixing the time afresh and in the meanwhile the time originally fixed had expired (as is the case before us). 11. In cases where the appellant obtains a stay order from the appel­ late Court stopping the operation of the order under appeal during the pendency of the appeal, the stay order suspends the operation of the origi­ nal Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of the performance expires during the suspended period (as is before us) the party, that had to perform the act on that date, cannot be visited with a penalty for not having performed it during the time when its operation was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree with all its. contents and provisions, the time for the performance of the act which had been suspended during the pendeicy of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order; nevertheless we think that it would be but fair that the original time allowed to a party by the trial Judge should Start running afresh from the date his appeal stands dismissed putting an end to the stay order. 12. In the instant case, the decree against the respondent was passé by the Sub-Judge on 31st of December, 1973, subject to the deposit of Rs. 8,000/- as purchase price on or before 31st of January, 1974. Obvi ously, 30 days were allowed to him for making the deposit of the decreta amount. Therefore, after dismissal of the appeal on 3rd of May, 1977, on the principle of "reasonable time" the utmost concession that can allowed to the appellant who had failed to make the deposit within the time specified in the decree granted to him by the trial Court and the appellate Court had also granted him no fresh time, the time for depositing the dec­ retal amount would be considered as the same as was fixed by the trial Court but it would be reckoned from the date the appeal stands dismissed. This, to us, would be fair and also reasonable time for a party. 13. All the cases are one to state that the deposit must be made within a reasonable time from the decision of the last Court, failing which the suit must be dismissed in terms of the original decree. In a case cited as 'Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others' (1976 SCMR 420) there being no specific order by the appellate Court granting extension of time for the purpose, it was held that the deposit should have been made within a reasonable time. In that case the deposit made after one month and eighteen days after the dismissal of the appeal was held to be made not within reasonable time and the suit for pre-emption was dismissed. 14. Before we part with the case we may make a mention to some of the cases cited at the bar for and against the proposition of reasonable ness of time :— 1. 'Shah Wali v. Ghulam Din' (P.L.D. 1966 S.C. 983). 2. 'Haji Ishtiaq Ahmad and 2 others v. Bakhhsaya and 7 others' (1976 S.C.M.R. 420). 3. 'Khurshid Akbar v. Mian Manzur Ahmed & another'(1982 S.C.M.R. 824). In 'Shah Wali v. Ghulam Din' (P.L.D. 1966 S.C. 983), Cornelius, C.J. approved tne rule of "reasonable time" as laid down in 'Kisan Dewaloo Mali v. Ganga Bai' (A.I.R. 1939 Nag. 279), in the following words :— "A parallel case to the present case is that of Kisan Dewaloo Mali v. Ganga Bai A.I.R. 1939 Nag. 279 pre-emptor after dis­ missal of his suit by the District Judge withdrew the money he had deposited towards the price in compliance with the trial Court's decree. Later, his appeal was allowed by the High Court and the suit was decreed in his favour, but no time was fixed for payment of the price. When he attempted to deposit the money in the trial Court, he was resisted on the ground that the time fixed had already expired, but the matter coming again be­ fore High Court, it was held that this was a case of 'technicality pushed to extremes' and that the money ought to have been allowed to be deposited within a reasonable time." In the same case, Hamoodur Rahman. J, (as he then was) observed : "But there appears to be some difference of opinion on the ques­ tion as to what is to happen if the appellate Court even in such an appeal says nothing about the time fixed by the lower Court in making the deposit. One view is that the time remains unchanged, for, even if the appellate decree supersedes the decree appealed from it must be taken to have confirmed that the decree to that extent vide Sukhram Das v. Nazar Muhammad. The other view is that if the appellate Court decree is the only executable decree and it fixed no period for depositing the pre-emption money the appellate decree must be deemed to have incorporated the terms of the decree appealed from with this difference that the period fixed will run from the date of the appellate decree vide Rup Chand and others v. Shams ui-Jehan. The third view is that in such event the deposit may be made within a reasonable time from the date of the appellate decree vide Guptar Tewari v. Debi Soran Tewari A.I.R. 1914 All. 248 and Kissao Dewaloo Mali v. Ganga Bai A.I.R. 1939 Nag. 279. Another extreme view taken is that in such a case the successful pre-emptor suould be entitled to enforce the decree within the period prescribed for the execution of the decree by the Limitation Act, vide Chakar Dar and others v. Ghapila and another 10 P.R, 1895. Neither the first nor the second nor the last view appear to be based upon sound principles. If the first view prevails then the right of appeal would bs rendered illusory unless the deposit has been made even if the pre-emptor is appealing against the quantum of the pre-emption money of the reason­ableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorporated within it the terms of the decree appealed from how can the starting point of the period be deemed to have been varied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, Civil Procedure Code. In the circumstances, I would agree with my Lord the Chief Justice that, the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and the successful pre-emptor is not deprived of the fruits of his decree unreasonably." In 'Haji Isbtiaq Ahmad and 2 others v. Bakhshaya and 7 others (1976 S.C.M.R. 420) it was held : 'Coming now to the facts of the instant case, we have already stated that the period fixed for the deposit of the pre-emption money by the trial Court had expired by the time the pre-emptor's appeal was dismissed by the District Court on 19-4-1969, on which date the interim order made by the appellate Court suspen­ ding the original decree with regard to the deposit of the amount also came to an end. There being no specific orders, by the appellate Court granting an extension of time for this purpose, the deposit should have been made within a reasonable time, but it was not made until the 6th of June 1969. No explanation was furnished by the pre-emptor for her failure to make the deposit for a period of one month and 18 days after the dismissal of her appeal." In 'Khurshid Akbar v. Mian Manzar Ahmad and another' (1982 S.C. M.R, 824) it has been observed :—

l Even if the rule of 'reasonable time' as enunciated in Ishtiaq Ahmad's case which was strongly relied upon by Mr. A.R. Sheikh was to be applied, a close perusal of the judgment in that case shows that it was observed therein that the utmost concession that can be allowed to a pre-emptor, who had failed to make the deposit within the time speciiied in the decree granted to him by the trial Court or the Appellate Court and in whose case no fresh extension of time is granted by the higher Court acting in first appeal, second appeal or revision, as the case may be, is the rule of 'reasonable time' mentioned by Cornelius, C,J. and Hamoodur Rehman, J, in the case of Shah Wa!i, In all such cases, their Lordships observed that the deposit must be made within a 'reasonable time' from the decision of the last Court, failing which the suit must be dismissed in terms of the original decree." 15. In view of the above, the argument of Ch. AH Muhammad, the learned counsel for the respondent, that time left for making the deposit of the decretal amount at the lime the order of trial Judge stood suspended by the appellate Court was to be allowed, cannot be adhered to as it may perpetuate injustice. We find that after the dismissal of the appeal so much of the time, as was originally fixed by the trial Court, should be considered as reasonable time and be allowed in all such cases. We do not think that the apoellant, towards depositing the pre-emption amount after one month and 20 days can be said as to have acted within a reason­ able time. We feel that since the order of the Sub-Judge had been superseded by that of the appellate Court made on 3rd of May, 1977, though it was one of affirmance, the time allowed by the trial Judge for making the deposit was to be counted from the dale of the order of the appellate Court. The appellant was given 30 days in all for depositing the decretal amount. On first appeal the learned District Judge, vide his order dated 29-1-1974, suspended Ike operation of the order for payment of the decretal amount. On these facts we think that the period allowed by the trial Judge for depositing the decretal amount should be reckoned from the appellate order and this should be considered as a reasonable time for making the deposit. 16. We have already stated that ttie period fixed for the deposit of the pre-emption money by the trial Court had expired by the time the pre-emptor's appeal was dismissed by the District Judge on 3rd of May, 1977, on which date the interim order made by the appellate Court suspending the original decree with regard to the deposit of the amount also came to an end. There being no specific order by the appellate Court granting extension of time for this purpose the deposit should have been made within the reasonable time, i.e., within thirty days after the decision of appeal but it was not made until 24.7.1977. No explanation was furnished by the appellant (pre-emptor) for his failure to make the deposit for a period of one month and 20 days after the dismissal of his appeal. The High Court was, therefore, right in the circumstances in holding -that the deposit had not been made within a reasonable time. The appeal, therefore, fails and is hereby dismissed. (TQM) Appeal dismissed

PLJ 1984 SC (AJK) 40 PLJ 1984 SC (AJK) 40 [Appellate Jurisdiction] Present : Raja MUHAMMAD KHURSHID KHAN, C. J. & SHER ZAMAN CHAUDHRY, J FAZAL DAD—Appellants versus CUSTODIAN EVACUEE PROPERTY, Azad Jammu & Kashmir and 3 Others—Respondents Civil Appeal No. 20/M. R. of 1980, decided on 14-12-1983. (i) Writ Jurisdiction—

Exercise of—Finding of fact—Interference with—Custodian Evacuee Property not shown to have no jurisdiction to adjudicate upon matter— Held : Evidence having been disbelieved by Custodian, High Court not to go behind finding of fact in (exercise of its) con­ stitutional jurisdiction—Azad Jammu & Kashmir Interim Constitu­ tion Act (VIII of 1974)—S. 44. [Pp. 41 & 42]A Judicial Review of Administrative Action by De Smith [Pp. 66-67] ref. (ii) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)—

S. 44—See : Writ Jurisdiction. Qazi Abdul Ghafoor, Advocate for Appellant. Ch. Shahwali, Advocate Nos. 1 and 3 for Respondent. Mr. Muhammad Yunus Surakhvi, Advocate for Respondent No. 4. Nemo for Respondent No. 2. JUDGMENT Raja Muhammad Khurshid Khan, C. J,—This appeal, by leave, is meant to discredit the judgment passed by a learned single Judge of the High Court on 29-5-1979 whereby refusing to interfere with the finding of the learned Custodian, recorded on 29-10-1978, the learned Judge disallowed the writ petition moved by the appellant in limine. 2. The circumstances, in brief, which have given rise to the contro­ versy are as under : The appellant sought a declaration in the Court of learned Deputy Custodian to the effect that the land in dispute under filed Nos. 2351, 2364. 2695 and 2563, measuring 19 kanals and 4 marlas, situate in the area of village Kharick, Tehsil Mirpur, has lost the character of the evacuee property. The claim was based on a document, Ex. P. C., which pur­ ported to have transferred the title of the land to the forefathers of the appellant. 3 The learned Deputy Custodian and the learned Custodian found ;.idence to support the title for the appellant in the document and proceeded to dismiss his claim. The learned Judge in the High Court also found no exception to these findings while dismissing the writ •? Leave was granted to consider as to whether document Ex. P. C, »£5 correctly excluded out of the evidence by all the Courts below. 5 Qazi Abdul Ghafoor, the learned counsel for the appellant, in • -poort of the appeal reagitated the same points on which he sought to :=a;ienge the order of the Custodian in the High Court. He submitted that the finding given by the Custodian with regard to the nature of the rrcpert), in view of the document Ex. P. C. was not correct and the orders of the Deputy Custodian and the learned Custodian, having been DAssed without evidence, were liable to be quashed by the High Court in exercise of the extraordinary writ jurisdiction. 6. The argument is misconceived. On going through the record we n^d t-at the learned Custodian has advanced cogent reasons to hold that the document, Ex. P. C., does not transfer any title in the land to the ipwilam. The appellant's case was that the suit land was purchased by Noor Alam, his father, from Ram Bahja Shah, a uon-muslim evacuee, in Dogra Regime vide agreement Ex P. C. In the first instance he claimed title on the basis of this document and in alternate claimed adverse pos session Both the pleas have been correctly overruled by the learned Custodian. The Khasra Girdawari pertaining to the Dogra Regime entered Ram Bahja Shah, non-muslim, as owner and Noor Alam is shown as a tenant. Similarly, Khasra Girdawari pertaining to the year 1996 Bk. carries the entry of the suit land in the name of Noor Alam on the basis jf an oral sale. Obviously this entry is in departure to the plea of the appellant. The above would show that the conclusion drawn by the learned Custodian can safely be derived from the state of evidence. ". The oral evidence in support of the claim does not inspire evidence for the reasons stated in the Custodian's order. The lacuna in the Revenue Record with regard to the title of the appellant has rightly been taken by all the Courts as to have created no title for the appellant S. Besides, whether rhis evidence should "nave been believed or not isj entirely a different matter. The ^Custodian having disbelieved me evidence}' |the High Court could not go beyond the finding of fact in a Constitutional petition unless it could be shown that the Custodian had no jurisdiction to •adjudicate upon the matter. De Smith on the concept of jurisdiction in "Judicial Review of Administrative Action, at pagss 66 and 67 beautifully says : "Jurisdiction means authority to decide. Whenever a judicial Tribunal is empowered or required to inquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a Court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whe­ ther it was wrong in law or in fact. It does not lose its jurisdiction even if its conclusion on any aspect of its proper field of inquiry is entirely without evidential support. The question whether Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to inquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion of the inquiry. Thus, a Tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensa­ tion and the tenure of the office, and it does not exceed its juris­ diction by determining any of those questions incorrectly ; but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it wiil exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A Tribunal may also lack jurisdiction if it is improperly constituted, or (possibly) if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed it jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e., has jurisdiction). Here in this case it is nobody's case that the Custodian had no juris­ diction to entertain the matter. The learned counsel also failed to point out that the finding recorded by the learned Custodian is passed on no evidence. The points canvassed by the learned counsel, therefore, have ao substance. The appeal, therefore, stands dismissed with costs. (MIQ) Appeal dismissed.

PLJ 1984 SC (AJK) 42 PLJ 1984 SC (AJK) 42 [Appellate Jurisdiction] Present : RAJA MUHAMMAD KHURSHID KHAN, C. J. MUHAMMAD HUSSAIN and Another-Petitioners versus MUHAMMAD LATIF-Respondent Criminal Petition for Leave to Appeal No, 54 of 1982, decided on (I) Criminal Procedure Code (V of 1898)—

S, 145-Disputes as to immovable property—Prescribed mode- Failure to follow -Effect of— Held : Magistrate though expected to exercise jurisdiction in conformity with provisions of law stipulated in S. 145, failure to follow prescribed mode not (necessarily) to render exercise of jurisdiction invalid and illegal in every case—Magistrate, after having acquired jurisdiction, failing to corspiy strictly with other requirements of section as to form of order and (even) not stating grounds of his having so satisfied - Hdd : Such defective order not necessarily to be without jurisdiction amounting to abuse of process of Court. [Pp. 43 & 44]<4 &. B (ii) Jurisdiction—

Defective order—Jurisdiction to make—Heli : Jurisdiction to make orders being dependent upon existence of ingredients necessary for foundation of jurisdiction, Court once valid!} 5 acquiring jurisdiction, incorrect or defective orders not (necessarily) to ba Without junsdictioQ. [P. 44] C Ch Muhammad Sharif Tariq, Advocate for Petitiosers. Cb. Riaz Akhtar, Advocate for Respondent, ORDER This petition for leave to appeal wants to caJl up aod o.«ash the order of the H;gh Court, made on 18-10-1982, whereby "the attachment order of disputed land measuring one marla, recorded oy the Sub-Divisional Magistrate Kotli on 1-4-1982 under Section 145 Cr, P. C,, was held to be vahdly made resulting in the dismissal of the application made under Section 561-A Cr. P. C. for the quash meat of the attachment order. 2. The main grouse of the petitioners before the High Court was that the preliminary order under Section 145, Cr. P. C. having not been made in strict conformity with the provisions of toe Section needs to be recalled under Section 561-A Cr. P. C. 3. 1 have heard the learned counsel for the parties. This petition has become infructuous because the proceedings under Section 14^, Cr. P. C. have been finally concluded by the SuD-Divssional Magistrate Kotli on 2-4-1983, the photostat copy of the judgment has been placed on the file, Mr. Muhammad Sharif Tariq, Advocate, does not contest this fact. 4. Even on facts this petition merits ao consideration. The High Court undoubtedly has the jurisdiction to quash the proceedings under Section 561-A Cr. P. C., if it is satisfied that the proceedings amount to an abuse of the process of the Court, 5. Let me see as to whether the order passed by the S. D. M. can ia any way be said to have abused the process of the Court. Under Section 145 Cr. P. C. an order, in writing, stating the grounds of satisfaction of the Magistrate, can legally be made. This statutory provision does noti prescribe the mode for the exercise of the jurisdiction. It is correct that! the Magistrates are expected to exercise the jurisdiction in conformity witbL the provisions of law stipulated under Section 145, Cr. P. C., but to sayj that the failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and iilegaS is not the spirit of law and it is too wide a proposition. 6, The elements necessary for foundation of jurisdiction under Section 145, Cr. P. C. are : (i) there should be a dispute to cause a breach of peace ; fij) the dispute must refer to land or water or the bouadries thereof ; and (Hi) such land or water etc. must be situated within the territorial jurisdiction of the magistrate, If these elements are present, they are sufficient to vest the magistrate with the jurisdiction to make the preliminary order in the mode prescribed under Section 145, Cr. P. C, If the Magistrate, after having acquired the jurisdiction, fails to comply strictly with other requirements of the section as to the form of the order and does not state the grounds of his being so satisfied, the order is no doubt defective but this would not mean that the order is also without jurisdiction amounting to an abuse of the process of the Court. 7. The jurisdiction to make the order depends upon the existence of the ingredients necessary for the foundation of jurisdiction. Once the Court has validly acquired the jurisdiction, as the case is before me, it cannot be said that it has only jurisdiction to make a correct order in the prescribed form and whenever the order is incorrect or defective ;he order must also be held to be without jurisdiction. I am, therefore, unable to subscribe to the view of Mr. Sharif Tariq, the learned counsel for the petitioners, that omission to state grounds upon which the Court is satisfied in the initial order under Section 149, Cr. P. C. necessarily makes the order without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and it is now well settled that mere non-observance with a rule of procedure per se generally is not an illegality vitiating the entire proceedings. In the result, the petition, being incompetent as wel! as having uo merit, fails. (TQM) Petition dismissed.

PLJ 1984 SC (AJK) 44 PLJ 1984 SC (AJK) 44 [Appellate Jurisdiction] Present : RAJA MUHAMMAD KHURSHID KHAN, C.J. NASRIN BEGUM—Petitioner Versus DIL MUHAMMAD and 2 Others—Respondents Civil Petition for Leave to Appeal No. 55/M.R. of 1982. decided on 12-12-1983. (i) ----- Norms of law aod rules— Failure to follow-— Held : Failure of Senior Advocate to follow norms of law and rules to be hardly appreciated. [P, 45] A lii) Supreme Court— --- Appellate jurisdiction of—Question of fact — Finding on— Chal­ lenge to— Held : Finding on question of fact to be open to attack as erroneous in law only if same be not supported by any evidence or be unreasonable and perverse— Held farther : where there be evidence to consider decree of High Court, decision to be final, even though Supreme Court m case of its having power to substitute its own judgment, comes to different conclusion (on question of fact). [P. 46] B (ii) Evidence Act (I of 1872)— -- Ss. 101 to 103— Right of prior purchase — Burden of proof of — Petitioner claiming right of prior purchase— Held : Burden to be on her to prove fact or facts providing her such right— Held further Respondents not to be saddled with responsibility to prove in negative that no such right resided in petitioner. [P. 46] C Nemo for Petitioner. Raja Muhammad Siddique, Advocate for Respondents. ORDER Raja Muhammad Aslam Khan, the learned Advocate who represents the petitioner, despite service, is absent. Even otherwise the record does not speak good of him. This petition for leave to appeal was presented on 15-12-1982 without list of rulings. Despite repeated notices by the Deputy Registrar the learned Advocate failed to file the same. All this shows that the learned counsel has unduly delayed in bringing this petition to hearing. Being a senior advocate he is expected to follow the norms« of law and rules ; failure whereof can hardly be appreciated. I hope in! future he would improve and be vigilant in prosecuting bis cases in accor-r dance with law and rules. _ 2. Despite absence of the learned counsellor the petitioner I have decided to dispose of this petition on merits. The petition seeks to dis­ credit the judgment passed by a learned single Judge of the High Court on 17-10-1982 whereby while discharging the judgment of the learned District Judge, Kotli, passed on 4-2-1982, the order of the learned District Judge, Kotli, dated 13-9-1981, in dismissing the pre-emption suit of the petitioner, was restored. 3. 1 have looked into the relevant ; jdginems passed by the Count, with the help of Raja Muhammad Siddique ;he karned counsel for the respon­ dents. Nasrin Begum ; petitioner, nought to pre-empt the sale-deed executed by her husband, Muhammad Sharif, in favour of Dil Muhammad and Fazal Dad respondent,. Sbe ;iaime.j '.ix- ^ght of prior purchase cm the basis of her being the wife of the vendor Muhammad Sharif. Her right was denied by the respondent-vendees. The pleadings gave rise to the controversial issue, No. 1, which is to the effect as to whether the petitio­ ner is clothed with the right of prior purchase of the suit land as compared with the vendees. 4. This issue was decided against the petitioner by the learned Sub- Judge vide order dated 13-9-1981. On appeal the learned District Judge discharged the finding of the Sub-Judge resulting in a decree of pre-emption in her favour. However, in second appeal moved by the vendees, as said elsewhere, while accepting the appeal a learned single Judge felt advised to restore the judgment of the learned Sub-Judge. 5. The petitioner, it does not require any deep thought, was required to prove that she was the wife of Muhammad Sharif vendor at the time the suit land was transferred. If she fails to prove so she is be non-suited. 6. When the marriage of Nasrin Begum, petitioner, was performed is a question of fact and the learned Sub-Judge and the High Court, on •well considered grounds, found that the marriage was contracted after the sale-deed which was registered on 16-7-1979. 7. A finding on a question of fact is open to attack as erroneous ia law only if it is not supported by any evidence or if it is unreasonable and perverse ; but where there is evideoce to consider the decree of the High Court the decision is final even though this Court might not, on the material, have come to the same conclusion if it had the power to substitute its own judgment. Here in this case three witnesses of the petitioner, namely, Muhammad Bashir, Lai and Muhammad Sharif, say that Nasrin Begum was married to Muhammad Sharif after the execution of the sale- deed. The other witnesses, namely, Ghulam Rasool, Hanif Kiian, Baqa Muhammad and Muhammad Iqbal, examined by the petitioner, no doubt, say that the marriage of Nasrin Begum was perfoim ed before the saledeed but statements of these witnesses do not ring true because they remetnbsr not the nanus of Nikah KLhawan and the witnesses of Nikah which they were expected to know if they would have participated in the marriage function. Their statements thus stand excluded from considera­ tion on substantial grounds. 8. It is clear to me that in the circumstances when the petitioner claims right of prior purchase, the burden is on her to prove the fact or ' facts providing her such a right ; and it would be illegal to saddle the respondents (vendees) with the responsibility to prove in negative that no such right resided in the petitioner. For the above stated reasons no good case for acceptance of this petition is made out. Ths petition, therefore, stands dismissed for nonprosecution as well as on merits, (TQM) Petition dismissed.

PLJ 1983 SC (AJK) 47 (Appellate Jurisdiction; PLJ 1983 SC (AJK) 47 (Appellate Jurisdiction; Present : RAJA MUHAMMAD KHURSHID KHAN, C. J. & ABDUL MAJEED MALLICK, J SULEMAN KHAN—Appellant versus ABDUL AZIZ and 3 Others—Respondent Cr. Appeal No. 2 of 1980, decided, on 10-8-1983. (i) Criminal Procedure Code (V of 1898)—

Ss. 145 & 146-Dispute as to immovable property—Civil litiga­ tion—Pendency of— Effect of Powers and jurisdiction of Magistrate- Scope of—Held : Power of Magistrate to be restricted in manner that he be excluded to advert into scrutiny of merits or claims of par­ ties to right to possess subject of dispute—Held further : Merits or claim to title or right to possess subject when recently settled by competent Civil Court, Magistrate to give effect to such recent decree concerning question of possession and to maintain possession acquired by either party in light of such decree and its execution in due course of law—Magistrate also to avoid interference into possession of subject by having recourse to attachment in presence of order of competent civil Court of appointment of receiver or cf issuance of ad interim injunction. [P. 51]/4, B & C ; u) Criminal Procedure Code (V of 1898)—

S. 145—Dispute as to immovable property—Proceeding before Magistrate—Held : Mere institution of civil suit not necessarily tc stop hands of Magistrate to inquire into question of possession hen other conditions contained under section fulfilled. [P. 51]D Hi) Criminal Procedure Code (V of 1898) —

Ss, 145 & 107—Dispute as tc immovable property—Presence of decree of Civil Court or order regulating possession for interim period—Apprehension of breach of peace — Remedy available- Held : where question of possession of subject settled bv, decision of competent Court or vvhese such possession be regulated in any manner, during pendency of civil proceedings, Magistrate, on in­ formation of likelihood of breach of peace, to be within his power to proceed against disturbance maker under Section 107, Cr. P. C.— In case of trespass or forcible dispossession of rightful owner, Magistrate, held further, to be equally competent to proceed against accused for commission of substantive offence. [Pp. 51 & 52]E & F (it) Criminal Procedure Code (V of 1898)—

Ss. 145 & 561-A-Proceedings before Magistrate—Quashment of— Proceedings under Section 145, Cr. P. C. peuding before Magistrate— Both parties pursuing their claims in civil Court—Attachment order not seeing its implementation—Held : Proceedings instituted in case being unwarranted and infructuous, same to be quashed. [P. 53]G Sh. Abdul Aziz, Advocate for Appellants. Kh, B. A. Farooqi, Advocate for Respondent. JUDGMENT Abdul Majeed Mallick, J.—These appeals arise out of the proceedings under Section 145, Cr. P, C. Although impugned orders of the High Court were recorded on different dates yet the proposition raised therein being common and identical it is deemed fit to decide them by a single judgment, 2. The immediate need for deliberation over the matter has emerged form the conflicting and divergent views of the High Court recorded in different cases under Section 145, Cr. P. C. The latest instance is of such a conflicting view. As in Suleman Khan's case (decided by Mr. Justice Sardar Said Muhammad Khan) it has been held that the jurisdiction of a Magistrate to attach the subject of dispute under Section 145, Cr. P. C. is not excluded even in presence of a recent decree of civil Court for per­ petual injunction or an order relating to ?possession passed in the terms of an interim injunction, upholding the possession of one of the parties to the proceediugs. The relevant part of the findings recorded in the impugned order, dated 28th April, 1979, is reproduced below : "It cannot be held that merely because a decree for perpetual injunction has been passed or civil proceedings are in progress therefore, the proceedings are incompetent This depends upon the facts of each case and the Magistrate has to see whether there is danger of breach of peace or not and once the Magistrate comes to the conclusion that there is serious danger of breach of peace and the case is that of emergency, the learned Magistrate is perfectly within his powers to initiate proceedings under Section 145, Cr. P. C. It is nowhere laid down under Section 145, Cr. P. C. that Magistrate is divested of his powers under Section 145, Cr. P. C. if there are civil proceedings pending between the parties. Even in case where the possession has been regulated by a temporary injunction and the Magistrate finds that even after such injunction, the rival parties are bent upon to create mischief and thus pose danger to peace, the Magistrate can proceed under Section 145, Cr. P. C. and make an order of interim attachment." 3. The counter view, as expressed in Abdul Latif's case, per Mr. justice Muhammad Yusuf Saraf, Chief Justice, (as he then was), is that in order to avoid conflicting decisions on the same matter proceedings under Section 145, Cr. P. C, should not be allowed when the matter is simultaneously taken to a civil Court. The impugned order dated 30th May, 1979, is quoted below : "This is a reference by the learned Sessions Judge Rawaiakot at well as a revision by Abdul Latif. A case has been instituted under Section 145, Cr. P C. but a civil suit is already pending. It has been laid down in many cases by us that in order to avoid conflicting decisions on the same matter. Proceedings under Section 145, Cr. P. C. should not be allowed when matter is simultaneously taken to a civil Court." Besides the cases under consideration our attention was .invited to few other cases wherein conflicting decisions were recorded by the learned Judges of the High Court in the terms of the impugned orders. It has, therefore, become necessary to resolve the conflict by settlement of the 4 One of the primary characteristics of our judicial set up is that jurisdiction of civil and criminal Courts is classified and prescribed in such a fashion that in no case overleaping or overrunning of jurisdiction of each other may be permitted. The legal scheme or system is so much exol.c:: that there are least chances of conflict between civil and criminal Court; .n exercise of their respective powers, :' In the instant controversy our attention is invited to streamline the score of power and jurisdiction of a Magistrate under section 145, Cr, P. C to make attachment of the subject of dispute in presence of a cecree '"or perpetul injunction or where the civil Court is simultaneously seized -v:th the matter and has regulated the possession of the land in ::sr_t; by appointing a receiver or through an ad interim injunction. - The legislature in its wisdom incorported special provisions in the Code cf Criminal Procedure to provide expeditious remedy in matters of risr.'.e likeh to cause problem of law and order, relating to immovable property The enacting provision for expeditious settlement of such disr.tes :s ia.d down under section 145, Cr. P. C. In this section it is ::-.ta:-;d th.it whenever a Magistrate having local jurisdiction over- the im~:vi;;e property in dispute is satisfied from a police report or other ;r.format:on that a dispute likely to cause breach of the peace exists con- ;er-.:r.2 any land or water or the boundaries thereof, he shall make an order in writing containing the grounds of his satisfaction to initiate the rroceed.cgs and shall require the parties concerned in such dispute to attend his Court in person or by pleader, on the date fixed and to put in v.-.tten statements of their respective claims in respect of actual possession ::" the subject of dispute. The Magistrate is authorised to hold inquiry :z order iknow as to who was in actual possession of the property in d.sp-te on the date of preliminary order or two months next before the date of such order. On completion of inquiry if the Magistrate was satisfied by the evidence on record that one of the parties was in possession of she subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. In case of attachment of subject of dispute, the Magistrate shall restore possession to the party dispossessed or where such party was forcibly and wrongfully dispossessed in the light of first proviso to sub-sectioji (4). But the Magistrate while passing final order has to confine himself to the factum of actual possession of the subject of dispute without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute. Sub-section (4) of Section 145, Cr. P. C. 'places a restriction on the jurisdiction of the Magistrate and thereby lays a condition precedent that while making inquiry into the question of actual posses­ sion of the subject of dispute the Magistrate shall refrain from giving a finding in respect of a right to possess the property by virtue of any merit or claim of any one of such parties. The exception to such restriction is available only in cases where the right to possess the subject of dispute is not controverted. In such like position the Magistrate is free to consider the title or claim of any of such parties while deciding the question of possession. 7, Again,, the language used by the Legislature suggests that the proceedings under the section are summary in nature and this being the position the Magistrate has to reach to a tentative decision concerning the possession of the subject of dispute. This view finds support from the words ! if possible used in subsection (4) in respect of the decision of the Magistrate as to whether any and which of the parties was at the date of the order (preliminary order) was in such possession of the disputed pro­perty. Reference to the words "if possible' is indicative of the position that the Magistrate was not duty bound to enter into detailed inquiry so much so to insist for sufficient evidence in order to reach to a definite conclusion in respect of the factum of possession. What he has to do is to summon the parties for fulling written staternenrs concerning their claim to possession and to record evidence, available or produced by the parties, snd then to dispose of the matter forthwith. In case of insufficient or un-satisfactory evidence, if the Magistrate was not in a position to reach to a definite conclusion concerning the possession of the subject of dispute be was to proceed in the light of provisions of Section 146, Cr. P. C. The purpose to reflect the aforesaid position is to explain that the proceedings prescribed by the section itself are summary in nature, as the only subject sought to be achieved is to eliminate likelihood of breach of the peace by provisionally maintaining possession of one of the parties until such party was evicted frora the property in due course of law and to direct pro­ hibition and forbidding all disturbance of such possession until such eviction. 8, The legislature keeping in view the nature of the proceedings of Section 145, Cr, P, C, and the duty assigned to a Magistrate was conscious of the situation where in absence of sufficient and convincing evidence the Magistrate would not be able to reach to a definite conclusion as to which party was in actual possession of the subject at the relevant time, To meet to such a situation the Legislature introduced section 146, Cr. P, C. which contemplates that if the Magistrate reached to the conclusion that none of the parties was then in such possession or finds himself unable to satisfy as to which of them was then in such possession of the subject of dispute he may attach it until a competent Court determines the rights of the parties thereto or persons entitled to possession thereof. Thus the provisions of section 146, Cr, P. C. which are in continuation of the pro­ visions under Section 145, Cr. P. C., are the enabling provisions to resolve the controversy in the terms of the section and to leave the final settlement of the dispute to the discretion of competent Civii Court. The. matter does not end there as the section further provides that when a Magistrate attaches the subject of dispute or appoints a receiver of the subject the possession of the subject of dispute shall be made over to a receiver appointed by any civil Court subsequent to the order of attachment or appointment of the receiver by Magistrate. 9. We have already noticed that under subsection (4) of Section 145, Cr. P. C. the introduction of the words if possible' and incorporation of the proviso under subsection (2) of Section 146, Cr. P. C. clearly reflect that the order of the Magistrate, whether under Section 145, Cr, P. C. or 146, Cr. P, C . is not only subject to the decision of a competent civil Court, but it also provides that the moment civil Court takes a step to regulate the possession of the subject of dispute by appointment of a receive.-, the order of the Magistrate automatically gives way to the order of civil Court as the Civil Court is vested with power as final arbiter, Therefore, it is wrong to suggest that it is nowhere laid down under Section :45, Cr, P. C. that the Magistrate is divested of bis power in presence of civil proceedings or when the possession is regulated by a temporary injunction or in presence of a recent decree for the perpetual injunction The Magistrate acting under Section 145, Cr P, C. is under an coii jav.on to respect any recent decision concerning possession of the sub;ic: £-/.en by a competent civil Court. In case such a decision is not g:ven d-s consideration and weight the action of Magistrate shall not only bi c;-cga:or;. to the norms of administration of justice, but it may also .•-inornate in disastrous results. To give Importance to the recent decree :1 Court or an interim order in the terms of appointment of the rece.'.e: :f issuance of ad interm injunction, is also a question of judicial rrrrr.e:;-. Thus the position finally comes to this that the Magistrate is, ;:" c::se. competent to initiate proceedings under Section 145, Cr. P. C. -hti he is satisfied from any information that there exists likelihood of ::ia;n ::" the peace concerning the possession of land or water or the r:_n:a:;es thereof and he is within his jurisdiction to constitute an inquiry .z crae: to determine the question of factum of possession, but the power :: the Magistrate is restricted in the manner that he is excluded to advert in:: sc:-t;ny of the merits or the claims of the parties to a right to -:ss: = s the subject of dispute, Secondly, when merits or claim to a title :: r.gnt to possess the subject is recently settled by a competent civil B Co•:: the Magistrate shall give effect to such a recent decree concerning the ;ts:.:2 of possession and shall maintain the possession acquired by either, part;- :n the light of such decree and its execution in due course of law.| c L:se:5e. the Magistrate shall avoid interference into possession of thej subject by having a recourse to attachment in presence of an order of ;:n:D=tent civil Court of appointment of a receiver of issuance of ad-L i.-f:"i inunction. But mere institution of a civil suit may not necessarilyl s::p the hands of the Magistrate to inquire into the question of possession' hin other conditions contained under the section are fulfilled. 10 The next question pertinent to the proposition is as to what remed;. is available to avoid likelihood of breach of the peace in presence of the recent decree of the civil Court concernsng the possession or an order regulating the possession for interim period ? The proper answer is that when the question of possession of the subject is settled by the decision of a competent Court or its possession is regulated in one of the aforesaid manners, during the pendency of the civil proceedings, on infor­ mation of likelihood of breach of the peace, the Magistrate is within his power to proceed against the disturbance maker under Section 107, Cr. P. C. It is well admitted that the provisions of Section 107, Cr, P. C. which are general in character, are even attracted in such like cases. Besides that in ease of a trespass or forcible dispossession of the rightful lowner, the Magistrate is equally competent to proceed against the accused |for commission of substantive offence. 12. The learned counsel for the parties cited various authorities in favour and against the proposition. The authorities cited at the bar are : "Hafiz Muhammad Hussain v. The State and another" (P L D 1974 Note 47), "Abdul Qudoos v. Mangis" [PLJ 1980 Cr. C. (AJK.) 100] "Syed Gal Muhammad and another v. Ulus Kiili Nasozai and another" [PLJ 1979 Cr. C. (Qta.) 322] "Anwar Javed and another r. Ikramal Haq and others" (PLJ 1977 Lah. 246, "Shah Muhammad v. Haq Nawaz" (1971 P. Cr. L. J. 610), "Shah Muhammad v. Haq Nawaz and another'' (P L D 19^0 S. C. 470), "Mst. Asfa Sultana v. The State and another" (P L D 1972 Lah. 478), "The State v. Abdul Sattar and others" (P L D 1965 Kar. 305), "Imdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others" (1971 S C M R 581) and "Shah Muhammad v. The State and 5 others" (N. L. R. 1978 Cr. 529). 12. We have examined the case law cited at the bar and we find ourselves in complete agreement with the view of Supreme Court of Pakistan expressed in Shah Muhammad's case (PLD 1970 S. C. 470). As we have enunciated the principle applicable to the cases that proceedings are carried before a Magistrate under Section 145, Cr. P. C. and in the Civil Court about a common subject of dispute and between the same parties simultaneously, next we proceed to decide the cases in hand. First : take up the case of 'Suleman Khan r. Abdul Aziz.' In this case the. proceedings were initiated by ths A. D. M., Rawalakot, on the application of Abdul Aziz Khan, dated 5-6-1978. It was alleged that the applicant was in possession of the land in his own right, It was admitted that the parties were pursuing their claims over the property in Civil Court where counter suits were in progress. The ex pane decree for perpetual injunction already passed in favour of the applicant was partly set aside to the extent of Muhammad Ashraf and Khurshid, respondents. The application was controverted by the opposite party, who made parallel claim of possession of the land in dispute. The attachment order made by the trial Magistrate was challenged in revision before the Sessions Judge, who made a reference to the High Court with recommendation that the entire proceedings were likely to be quashed as the same were unwarranted in presence of counter ci\il proceedings between the parties. The learned single Judge of the i Iigh Court disagreed with the Sessions Judge and recorded his opinion in the terms already reproduced in preceding paragraphs. 13. A perusal of the record reflects that the attachment order dated 11-6-1978 has never seen its implementation; even by this time. It is interesting to note that on failure of the applicant-respondent to get the order of attachment implemented he moved another application under Section 145, Cr. P. C. in the same Court on 7-10-1979. The learned Magistrate dismissed the application on merits on 1st August, 1982. This order not having been challenged in the superior Courts has become final. In that order the learned Magistrate came to the conclusion that Abdul Aziz, applicant-respondent, failed to prove his possession on the date of preliminary order. In addition to that the learned Magistrate also pro­ ceeded to reject the application in the light of civil proceedings already pending between the parties. The fact that the order of attachment dated 1-6-1978 was never implemented, coupled with the subsequent events in­ cluding the counter civil proceedings, hardly justify to allow the case under section 145, Cr. P. C. to continue further. It is, therefore, oroered that the proceedings instituted on 5-6-1978 are unwarranted and they are be^.-ic mfructuous in the light of the order of the Magistrate dated j-S-19'52 and the same are hereby quashed, 14 in -Abdul Latif and others v. Muhammad AshraT the proceedings ..uJer section 145, Cr. P. C. were initiated by the local Magistrate on the application of Abdul Latif and others. The applicants alleged that they ere in possession of the suit land comprisiog survey No. 144 min. in their c.vh r;gh: whereas the non-applicants, respondents Nos. 1 and 2, who na-oeJ"'. red to secure a sale-deed from Sfaer Muhammad and Faqir M-hammed, co-sharers, were threatening to occupy the land forcibly. Thus :be act of the respondents caused likelihood of breach of the peace. The opposite party denied the allegation and made a counter claim that :ie> have entered into possession of the land 8/9 months prior to the Tiling of the application by virtue of sale-deed. It was further claimed that" arr:l;cants prior to the riling of the application under Section 145, Cr. ? C. r.led a civil suit for cancellation of the sale-deed and possession :: the land. On dismissal of their suit by the Civi! Court and after filing in appeal before the District Judge, which w t- awaiting the decision, the arplic'an'.s took second step by moving uie Magistrate in order to disr::$es; tie respondents. The learned Magistrate attached the property :: h.s c-de: was challenged in revision Dd re the Sessions Judge, who made reference to the High Court with the recommendation of quashment ;f rr:ceed.ngs on account of simultaneous proceedings in the Civil and Criminal Courts, The learned Chief Justice, who recorded the impugned ::der. 'a5 persuaded to quash the proceedings in the terms of the impugned :rder reproduced in earlier part of the judgment. .5 On perusal of the record it has transpired that the order of -:;a.cn~i:nt in this case too was never implemented. Applicants first .-5:.;.:ed a civil suit for cancellation of the sale-deed and on dismissal of :ne-.r suit they went in appeal to the District Judge, but at the same time felt ad r . :sed to invoke the jurisdiction of the Magistrate under Section 145, Cr. ?. C. and to get the land attached till completion of the inquiry. The srcccd course was obviously adopted to seek dispossession of the opposite part;.. In this case the unavoidable conclusion emanating from the record is that the appellants made an attempt to achieve their object of dispos­ session of the other party through resort to the provision of section 145, Cr. P, C. It appears that the trial Magistrate passed attachment order without applying his mind to the facts of the case as well as without realising the effect of the order of attachment. As a matter of fact the learned Magistrate came forward to aid in dispossession of the respon­ dents. This approach of the trial Court is undesirable as the law does not enjoin upon a Magistrate to become a party to the proceedings ; so much so to help in deprivation and dispossession of the party who has been declared rightly in possession by a competent civil Court. Despite the fact that we may not agree with the broad principle laid down by the learned Chief Justice, but keeping in view the facts of the case in hand we do not find ourselves in disagreement with the ultimate result of the impugned order. The appeals are, therefore, dismissed. (Aq. By.) Appeals dismissed.

PLJ 1984 SC (AJK) 54 PLJ 1984 SC (AJK) 54 [ Appellate Jurisdiction ] Present : RAJA MUHAMMAD KHURSHID KHAN, Actg. C.J., & SHER ZAMAN CHAUDHRY, J AZAD JAMMU & KASHMIR GOVERNMENT—Appellant versus HABIBULLAH LONE—Respondent Civi! Appeal No. 15/Mzd. of 1980, decided on 14-11-1983. (i) Civill Procedure Code (V of 1908)—

O.III, R. 4 (!)-Advocate—Appearance through—Held : Any appearance, application or act in or to any court required or autho­ rised by law to he made or done by party to be competently done by party himself or by his recognised agent or pleader on his behalf— Held further : Power to act to be conferred and power of attorney to be filed in Court before such Advocate acts on behalf of party. [ P. 56] A (ii) Civil Procedure Code (V of 1908)— — -Ss. 96 & 100—Appeal—Right of—Held : Right of appeal to be exercised by those persons only in whom (such) power be vested ex­ pressly or impliedly by statute. [P. 57] B (iii) Leave to Appeal—

Grant of—Interest of person stranger to suit adversely affected by judgment, decree or sentence— Held : Leave to appeal to be compe­ tently granted to such person—Held further : Person not affected- by order being no aggrieved party, petition for leave to appeal not to be competently filed by such person, [P. 57 ] C & D 1972 SCMR 301 re/. (ir) Azad Jaoitnu & Kashmir Supreme Court Rules, 1978— ——O. IV. R. 19—Advocate—Authority to act on behalf of party-Advocate not duly appointed in writing to act on behalf of Govern­ ment— Held : Filing of petition on behalf of Government by such Advocate to be completely devoid of validity. [Pp. 57 & 58] E (?) Azad Jammn & Kashmir Supreme Court Rules, 1978—

O. XLII1, R. 5—Inherent powers—Exercise of—Illegal act per­ formed by Government not even disowned by Government (Appel­ lant in case)— Held : There being no abuse of process of Court and ends of justice being also not involved inherent powers of court not to be attracted. [P. 59] F PLD 1965 SC 310, PLD 1965 SC 527; PLD 1968 AJK 48 & PLD 1969 Kar. 566 distingnished. (vi) Azad Jammu & Kashmir Supreme Court Rules, 1978—

1. IV, R. 19—-Advocate—Authority to act oa behalf of party- Petition for leave to appeal filed by counsel not authorised to file same—Held ; Appeal flowing from such petition also to become incompetent and to staod rejected. [P. 59] G Sardar Rafiq Mahmud, Additional Advocate General for Appellant. Kb. Muhammad Saeed, Advocate for Respondent. JUDGMENT Raja Muhammood Khurshid Khan, Actg. C. J.—The above captioned cause was converted into an appeal from a petition for leave to appeal. It was presented in this Court by Sardar Rafique Mahmood, Additional Advocate General, on behalf of the Government. The petition instituted :n !4-5-i9"9 was signed and verified by Sardar Rafique Mahmood, 2. The impugned order was made by the High Court in a writ petition No, 20 of 1978) moved by Habihullah Lone, respondent herein. By this judgment the order of the Government No. 1105/11 dated 21-6-1978, which cancelled an earlier order of the Government, made on 9-2-1976, was declared by the High Court as illegal and without lawful authority. A subjsruen; order. No. 3191-94 dated 6-7-1978, passed by the Government was also declared to be void. _ : The dispute has arisen in the following way : The Government, ar?-eliant, on the representation, being made, accepted the claim of the ::sr:ncent-contractor for the payment of escalated amount according :: the revised rates vide Government Order No. 265-269 dated 9-2-1976. 3; vrtue of this order the respondent was paid Rs. 14,000 as part ray—ent of the amount, which the respondent was entitled on account of enha-ced rates. Later in time the Government felt advised to cancel the order c'< virtue of which the respondent had received the enhanced amount ar:d :s:usd a fresh order dated 21-6-1978 and another order dated 6-7-1978 calling upon the respondent to refund the amount of Rs. 14.000/-, which he had already received. The first mentioned order dated 9-2-1976, allowing increased to the respondent, it was held by the High Court, cojld not be recalled by the appellant, 4. Leave to appeal was granted to consider as to whether the contro­ versy between the parties relates to the contractual obligations which cannct be made subject of writ petition. 5. During the progress of the appeal, Kh. Muhammad Saeed, the learned counsel for the respondent, took exception to the maintainability of the petition for leave to appeal, inter alia, on the ground that the petition was instituted by Sardar Rafique Mahmood, Additional Advocate General, who was not authorised to act on behalf of the Government. According to the learned counsel the 'Vakalat Nama J authorising Sardar Rafiq Mahmood to institute the petition for leave to appeal was signed by Safdar Aftab Ahmad Khan, the Law Secretary of the time, without any authority as he had no directions from the Government to file an appeal or petition for leave to appeal. 6. The point obviously goes to the very root of the case and we, therefore, propose to dispose it of as a preliminary issue. To ascertain the correct position the learned Additional Advocate Genera! was directed to produce the relevant file for our inspection. The file was submitted and we examined it on S5-6-1983. The note on the file showed that on 11-3-1979. Sardar Aftab Ahmad Khan, the Law Secretary, without any direction or sanction of the Government to file an appeal/petition for leave to appeal before the Supreme Court, asked the Additional Advocate General to file the petition for leave to appeal and also executed a 'Vakalat Nama 1 on his behalf. The note also enters that his act shall later on be got approved by the Government. But it was strange to observe that no approval of the Government was available on the file on the date we examined the file. However, it appears from the contents of the Government Order No. 2448- 81, later on placed on file, that the Government had approved the institu­ tion of the appeal, long after the period of limitation, on 27-6-1983 to impeach the order of the High Court dated 35-1-1979. The direction of the Law Secretary to the Additional Advocate General to move an appeal before the Supreme Court on 11-3-1979 was also approved. The 'Vakalat Nama' executed by Sardar Aftab Ahmed Khan, it may be noted, stili remains unapproved. 7. The questions which are of importance, are : as to whether the petition for leave to appeal was validly instituted and if the answer is in negative can the aforesaid approval, now made after the period of limita­ tion, validate incompetent institution of the petition for leave to appeal ? 8. An appeal or petition for leave to appeal can validly be instituted if it is presented by a person competent to institute it. Here in this case Sardar Rafique Mahmood had do authority from a competent person, i.e., the Government to institute the petition. No laboured argument is re­ quired to trace out the reason. Sardar Aftab Ahmad Khan, who had signed the 'Vakalat Nama' to institute the appeal or petition for leave to appeal in the Supreme Court, had no direction from the Government to move an appeal or a petition for leave to appeal and, therefore, he was incompetent to authorise Sardar Rafique Mahmood to move the petition for leave to appeal in the Supreme Court. 9. Can the approval order now made by the Government validate the appeal ? We may here record our appreciation for Sardar Rafique Mahmood who had, very rightly, conceded that the approval order referred to above would not validate his act in filing the petition for leave to appeal, because after the period of limitation a right had accrued to the respondent which cannot now be snatched away from him. 10. It admits of no exception that any appearance, application or act in or to any Court required or autiorised by law to be made or done by a party may, except in such Court where expressly provided by law for the time being in force, be made or done by the party himself or by his recog­ nised agent or by a pleader on his behalf. Power to act on behalf of a party must have been conferred on an Advocate and the power of attorney must have been filed in the Court. 11. Order 3 Rule 4 sub-section (1) of the Code of Civil Procedure provides the conditions that are necessary in order to enable an advocate to act on behalf of a party in a cause which reads :— "(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a povver-ofattorney to make such appointment." Order 3 Rule 4 does not lay down any absolute rule but is subject to the Rules of the Court regulating the procedure, After a judgment is given in a case and a decree is passed, a right of appeal can be exercised only by those persons in whom the power is vested expressly or impliedly by thelg statute. A right of appeal is given to an aggrieved party and here in this easel the Gosernrnent, being an aggrieved party, could present an appeal personally! or through its advocate duly appointed. Of course, leave to appeal can be granted to a person who is not a party to a suit if his interest is involved in :he case which interest is being adversely affected by the judgment, decree : sentence. But a person not aggrieved by an order (Sardar Aftab Ahmed Khan, who executed the power of attorney in this case in favour of Sardar Rafique Mahmood, not being affected by the order cannot be said to be an aggrieved party) cannot file a petition for leave to appeal. In case Secretary to the Government of Punjab and others v. Ch. Hameed-ud- Din and others'(1972 S.C.M.R. 301) where the services of the respondent wire terminated by Lahore Municipal Corporation, while the appeal was riled '";• tbe Government, it was observed :- "It' that is so, it is for the Lahore Municipal Corporation to challenge the order of the High Court. The petitioner cannot challenge the judgment of the High Court on behalf of Lahore Municipal Corporation. It has no locus standi to do so." Con>tqu:ntl> the appeal was dismissed, '.I. The present case is identical with the case referred to above. The pe;:t:on was signed by Mr. Rafique Mahmood, Additional Advocate General, who was authorised by Sardar Aftab Ahmed Khan, Law Secretary. whose personal interest in the case is not at all involved and he was and is not a party to the proceedings. Mr, Rafique Mahmood could file the petition only on behalf of the Government who is an aggrieved party and Sardar Afta'b Ahmed Khan could only validly authorise Sardar Rafique Mahraood to file the petition for leave to appeal if the Government would have directed him to do so.
2. Besides, Rule 19 of Order 4 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, regulates the procedure in this behalf which lays down the conditions that are necessary.for investing an advocate with the authority to act on behalf of a person. The relevant provision is :— "Every Advocate on record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act." This provision would clearly show that before an Advocate can act for a party he must firstly have an authority by him to do so and secondly the authority must be in writing by the party. Unless these two conditions are complied with an action taken by an advocate on behalf of a person would not be deemed to be a valid performance of his function. In the absence of a duly executed power of attorney it would be said that such an advocate had no authority to act on behalf of that person. A pleader who files a petition for leave to appeal cannot do so except when he is authorised in writing by such a person. Therefore, filing of a petition on behalf of Government by Sardar Rafique Mahmood who had not been duly appointed by the Government in writing, as required under rules, is not only an irregularity which may be cured at a subsequent stage but it is also completely devoid of validity.
3. Sardear Rafique Mahmood, however, submitted that the Law Secretary by virtue of a Government Order No. Admin,/12410-125000/SS/70 dated 2(/24-6-1970, without the direction of the Government, is competent to engage a counsel. We regret we cannot agree with him. The order to which the reference has been made, reads as under — "The Azad Government of the State of Jammu and Kashmir is pleased to order the constitution of a panel of lawyers for con­ testing cases of civil nature on behalf of the Government for each District of Azad Jammu and Kashmir as follows : 1. Muzafifarabad District. 1. Sh. Abdul Haiy, Advocate. 2. Syed Tassadiq Hussain Shah, Advocate. 3. Kb. Bashit Ahmed Fatooqi Advocate. 4. Sardar Mohammad Yasie Khan, Advocate. 2. Poonch District. 1. Sardar Said Muhammad, Advocate. 2. Sardar Siyab Khan, Advocate. 3. Raja Khursbid Ahmad Khan, Advocate. 4. Mr. Sadiq Farooqi, Advocate. 3. Mfrpur District. 1. Kb. Mohammad Shafi, Advocate. 2. Ch. Muhammad Yafaya Cheema, Advocate. 3. Qazi Abdul Ghafoor, Advocate. 4. Mr, Majid Malik, Advocate. 5. Sardar Aftab Ahmed, Advocate. 6. Ch. Muhammad Hussain, Advocate.
4. The law secretary would be the competent authority to deter­ mine wfapther a case should be contested by the Government Advocate/Government Pleader or by a lawyer included in the panel of lawyers.
5. The counsel fee to be paid to a private lawyer shall be fixed by the Law Secretary having regard to the rules prescribed in this behalf by the High Court." 15. The bare reading of the order would show that document cons­ titutes a panel of lawyers for contesting cases of civil nature on behalf of the Government. It further gives competence to the Law Secretary to exercise his discretion as to whether a case should be contested by the Government Advocate, Government Pieader or by a lawyer on the panel. Obviously it does not give any power to the Law Secretary to direct pro­ ceedings in a cause without the direction of the Government. We asked the learned Additioual Advocate General to produce any document which gives power to the Law Secretary to exercise his choice either to file or not to file appeals against the orders of the High Court, but he frankly conceded that there is no such document. The aforesaid order, therefore, as conceded by the learned Additional Advocate General, would not validate petition for leave to appeal which is otherwise incompetent. 16. Sardar Rafique Mahmood then made a reference to Order XLIII Rule : cf the Azad Jammu and Kashmir Supreme Court Rules, 1978, and submitted that this Court should use inherent powers to rectify the wrong. Order XLIII Rule 5, which reads : — Noting in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."does set stipulate the situation available in this case. The order aims at to pass order to advance ends of justice or to prevent abuse of the process of the Court. But in the instant case we fail to note any abuse of the process of the Court and ends of justice also do not attract inherent powers. The Law Secretary has performed an illegal act which has not even been disowned by the Government. The Government, therefore, is tr surfer for its act. Law lulls a party who sleeps over his right. 17. Sardar Rafique Mahmood has cited the following cases.during the course of his arguments :— Pakistan v. Waliullan Sufyani' (P.L.D. 1965 S.C. 310), Government of Pakistan v. Syed Aknlaque Hossaio and another (P L.D. !965 S.C. 527), 'Hakim Muhammad Saleem v. Government of Azad Jammu and Kashmir and others' (P.L.D. 1968 Azad J & K 4s) and 'Messrs Nabi Bakfasb & Sons v. Pakistan' (P.L.D. 1969 Kar. 566). We have examined these authorities. They are beyond the con­troversial issue and have nothing common with the facts of the present case. In view of the above there is no escape but to hold that the petitionl for leave to appeal has been filed by the counsel who was not authorised tol file it. As the appeal flows from the petition for leave to appeal, ther appeal also becomes incompetent and stands rejected with costs. | (TQM) Appeal rejected

PLJ 1984 SC (AJK) 60 PLJ 1984 SC (AJK) 60 Present : RAJA MUHAMMAD KHURSHfD KHAN, C. J. MUHAMMAD YUSUF alias YUNUS—Petitioner Versus Mst. KAISAR JAN-Respondent Civil Petition for Leave to Appeal No. 5. Mzd. of 1984, decided on 9-4-1984. (i) Dissolution of Muslim Marriages Act (VIII of 1939)— ——S. 2 (ix) -Marriage—Dissolution of — Khula —Ground of—Wife developing fixed aversion (towards husband) and all attempts at re­ conciliation also failing—Held : Consequences in adopting of any other course being disastrous, Court to have no choice except to grant decree (for dissolution of marriage). [P. 6i]A PLD 1967 SC 97 & PLD 1959 Lah. 566 re/. (ii) Dissolution of Muslim Marriages Act (VIII of 1939)— ——S. 2 (ix)— Marriage — Dissolution of—Consent of husband- Requirement of—Held : Consent of husband not to be necessary for Khula divorce. [P. 62]B PLJ 1981 AJK(SC) 19 ref. (iiS) Supreme Court—

Appellate jurisdiction of—New point—Raising of-Held : Point not agitated before High Court not generally to be allowed to be raised for first time before Supreme Court. [P. 63]C Sh. Abdul Aziz, Advocate for Petitioner. Kb. Muhammad Saeed, Advocate for Respondent. ORDER 'Khula' divorce for Mst. Kaisar Jan, respondent herein, on payment of Rs. 5,000, was allowed by the Civil Court of original jurisdiction Authmuqam, vide judgment and decree dated 13-12-1982. On appeal by Muhammad Yusuf, petitioner herein, before the District Judge, Muzaffarabad, the amount of 'Khula' was reduced from Rs. 5,000 to Rs. 2,6uO vide judgment and decree dated 9-4-1983. The High Court, on second appeal by the caveator, on 7-1-1984, restored the judgment of the trial Court and allowed 'khula' divorce on payment of Rs. 5.000, 2, Leave to appeal is sought to assail this judgment of the High Court, inter alia, on the grounds : (/) thai 'khula' divorce cannot operate without the consent of the husband ; and (ii) that 'khula divorce is even not recognized under the Dissolution of Muslim Marriages Act, I9?9, 3. 1 have given my considered thought to the arguments advanced by Sh. Abdu! Aziz, the learned counsel for the petitioner, in support of his contentions referred to above. I regret I cannot agree with the learned counsel for the following reasons : (a) The superior Courts in Pakistan and Azad Kashmir are in agree­ ment that if the wife is adamant that she has developed a fixed aversion and if all attempts at reconciliation have failed, there is a little choice for the Court except to grant a decree for, consequences in adopting any other course may be disastrous. In this connection I may refer to the following observation from the well-known case of Mst. Kborsbid Bibi v. Baboo Muhammad Ainin (PLD 1967 SC 97} : ' under Muslim Law, the wife is entitled to 'khula' as of right, if she satisfies the conscience of the Court that it will other­ wise mean forcing her into a hateful union.,....and Shah Wali Ullah of Delhi in (Al-Musawwa-min-A/iadith-al- •Afuatta, Vol. II, p. 160) goes to the length of saying that 'even if she obtains 'khula' without any reason (apart from personal dis­ like) it is lawful but not approved. The reason is that the Pro­ phet and the Companions never inquired from her the reason for her (seeking) 'khula'. Referring to the hadith of the Prophet concerning Barairah and Mughis, the learned Judges concluded that : 'This shows that a woman cannot be compelled if she has a fixed aversion to her husband to live with him.' From the attitude of the parties it had become clear to the Family Court that there was no possibility of the spouses living together. That being so, the grant of decree on the ground of 'khula' can­ not be questioned/' (b) This issue also came under consideration in 'Balqis Fatima v. Najm-ul-Ikram' (PLD 1959 Lah. 566). In that case, after discussing diffe­ rent authorities on the controversy, it was observed : "Held (by the Full Bench) that the wife is entitled to a dissolution of marriage on restoration of what she received in consideration of marriage if the Judge apprehends that parties will not observe the limits of God. This is not equivalent to granting a right to wife to come to the Court at any time and obtain a khula' if she is prepared to restore the benefits she has received. There is an important limitation oa her right. It is only if the Judge apprehends that the limits of God will not be observad, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as.envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse. The Judge will consider the rift between the parties is a serious one though he may not consider the reasons for th« riff. That the wife may go wrong if dissolution is not ordered is rather a reason for grant of dissolution for Islam prefers divorce to adultery. The husband can effect a dissolution himself by pronouncing a divorce, while the wife has to approach the Court and she is to get a dissolution only if the Court regards further coatinuance of marriage as improper, there is not further limitation on its jurisdiction to dissolve the marriage. The verse of the Holy Qur'an which is the basis of the right of khuld 1 is verse No. 229 of Sura Baqr. This verse permits the termination of a marriage by wife passing consideration to the husband. The question for consideration is whether this termination can be effected only by agreement between the husband and the wife or whether the wife can claim such termination even if the husband be not agreeable. The words 'if you fear' being addressed to the state or the Judge; they can only mean that the Judge is entitled to pass an order even though the husband does not agree. Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some default on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault, there has to be restoration of property received by the wife and ordinarily it will be of the whole of the property but the Judge may take into consideration reciprocal benefits received by the husband and continuous living together also may be a benefit received. The jurisdic­ tion of the Qazi to dissolve a marriage in case of shiqaq is limited only by what is stated in the Qur'an, i. <., 'if you fear a breach' which means that there is real discord between the parties, and in the case of khula' by the words 'if you fear that they will not observe the limits of God'. While effecting separation, the Qaxi adjusts the financial matters so as to direct a partial or total restoration of the benefits received by the wife. As regards procedure to be followed in enforcing wife's right of khula the law provides that in matters of marriage and divorce Muslim Law shall apply to the Muslims. If the Muslims law provides a particular procedure for the enforcement of a right of dissolution either we regard that as a mere matter of procedure and having regard only to the substance of the right enforce it by whatever procedure is available. But the right of the wife cannot be defeated. Either we should appoint Hakams or we should ourselves assumes the jurisdiction of the Hakam in so far as it relates to dissolution for that is a judicial function. The word 'Hakam' is to be regarded in its ordinary sense of Judge or arbiter. One who is only a conciliator is neither a Judge nor an arbiter. Their Lordships were unable to accept the view that the jurisdiction of the Qazi is exhausted by the appointment of the arbiter, that if the effort at reconciliation fails, there is nothing further to be done and that the wife must be forced to live with the husband even though she be unhappy and may be in no way to blame and though the result would be that the spouses 'do not observe the limits of God'." (c) In fact the proposition that the husband's consent is not accessary for khula' divorce has been owned in so many cases and every case need not, be reproduced here. This Court, respectfully agreeisg with the superior Courts of Pakistan, observed in case ' Muhammad Rafique v. Mst. Snrta Bi'[PLJ 1981 AJK (SC) 19] that consent of the husband is imma­ terial for khula' divorce. (d) The argument that the 'khula' is not permissible under the pro visions of the Dissolution of Muslim Marriages Act, 1939, has also no substance. Under the Dissolution of Muslim Marriages Act a valid separation can be ordered on payment of khula' and this Islamic concept of separation of marriage had continuously been recognized by all the superior Courts of Pakistan and Azad Kashmir when circumstances foresee that tne spouses cannot live within the limits ordained by the Holy Qur'an. The Dissolution of Muslim Marriages Act clearly allows separation on this ground under Section 2 sub-clause (ix} which reads : "A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely : on any other ground which is recognised as valid for the dissolution of marriages under Muslim law." (e) Besides, the above referred points have not been taken before any of the subordinate Courts and, as repeatedly held, a point not agitated before the High Court cannot generally be allowed to be raised for the first time before this Court. The judgment recorded by the learned single Judge of the High Court shows that the only grievance of the petitioner was that 'Mw/a' money has been illegally reduced which grievance was accepted by the High Court. For the above stated reasons I am of the view that it would not be advisable to reopen a well considered and well settled proposition of law. This petition for leave to appeal, therefore, stands disallowed with costs. (TQM) Petition disallowed.

PLJ 1984 SC (AJK) 63 PLJ 1984 SC (AJK) 63 [Appellate Jurisdiction] Present : SARDAR SAID MUHAMMAD KHAN & SHER ZAMAN CHOUDHRY, JJ Syed IFTIKHAR HUSSAIN SHAH—Appeliant versus AZAD GOVERNMENT OF STATE OF JAMMU & KASHMIR through Secretary Mangla Dam Affairs Muzaffarabad—Respondent Civil Appeal No. 39 of 1975, decided on 17-4-1984. (i) Civil Procedure Code (V of 1908)-

S. 114 & O.XLVII, R, 1—Judgment of Court—Review of— Held : Litigant obtaining judgment from court of justice to be entitled to enjoy its benefits and not to be robed of fruits of judgment or decree so obtained by him except on solid grounds. [P, (ii) Civil Procedure Code (V of 1908)— - —O.XLVII, Rr. 1 & 4(2) (b)—Discovery of new evidence—Ground for review of judgment—Review of judgment sought by unsuccessful party on ground of discovery of new evidence—-Held ; Great care to be exercised and strict proof to be insisted upon by court while allowing relief of new trial. [P. 66]5 (iii) Civil Procedure Code (V of 1908)—

O.XLVII, Rr. 1 & 4 (2) (b)—Judgment—Review of—Held : Review to be allowed only within limitations envisaged under O.XLVII, rules I & 4 (2) (b) of Code. [P. 6?]C (iv) Civil Procedure Code (V of 1908)—

O.XLVII, R. 1—Review—Grounds for—"Any other sufficient reasons"—Meaning of—Held : Expressions "for any other sufficient reason" to be interpreted as meaning reason sufficient on grounds at least analogous to those expressed in rule. {P. 67]Z> Kh. Muhammad Saeed, Advocate for Appellant. Mr. T. H. Tariq. Advocate for Respondent. JUDGMENT Sher Zasnaa Chaudfary, J.—The facts giving rise to this appeal directed against the judgment of the High Court dated 13-«I-!974, passed on a review petition filed by the respondent briefly stated are that a house belonging to the appellant situated in old M'irpur town was acquired by the Government through an award announced on 15-9-1967, by the Collector Land Acquisition for Mangla Darn. The amount awarded was Rs. 9703/70. 2, Feeling dissatisfied with the award the respondent-Govern­ ment filed a reference petition claiming therein that the house'' in dispute having been constructed after the promulgation of notification under section 6 of the Land Acquisition Act, was .an unauthorised con­ struction. Since the appellant constructed the house without prior approval of the Collector Mangla Dam, he was, therefore, not, as claimed in the reference petition, entitled to any compensation. The Reference Judge after necessary proceedings dismissed the reference vide his judgment dated 31-10-1968. 3. An appeal filed by the Government challenging the correctness of the finding recorded by the District and Reference Judge Mirpur was rejected by the Division Bench of the High Court on 8-6-1970. The respondent then filed a petition for review of the judgment on the ground that new evidence has become available which if allowed to be produced will prove decisive on the point in dispute between the parties. Before the petition could be disposed of, the learned Chief Justice of the High Court, a member of the bench, which passed the judgment, sought to be reviewed had retired. So it was heard by the learned single Judge of the High Court who accepted the review petition on the ground of new evidence. The judgment under review was set aside vide High Court's judgment dated 13-11-1974, 4. It is this judgment of the High Court passed on a review petition, the validity of which has now been challenged. This appeal, it may be stated, was originally filed in the Judicial Board. Through the process of law it subsequently, however, stood transferred to the Supreme Court. The reversal of the impugned judgment is sought by the appellant on the ground that it is not in accordance with the requirements of Order XLVII rules 1 and 4 (2) (b) of the Code of Civil Procedure. 5. Kh. Muhammad Saeed, the learned Advocate for the appellant argued that the fresh evidence now sought to be introduced and made basis for the review by the respondent-Government was, as appears from the record, within the respondent's knowledge at the time when the reference was still pending before the District and Reference Judge Mirpur. Despite this knowledge about the existence of this new evidence now made basis for the review, the respondent made no effort to produce it tii I after the dismissal of the appeal by the Division Bench of the High Court. There existed no justifiable reasons, argued the learned counsel, warranting the review of its judgment by the High Court. The impugned judgment being violative of the rules contained in Order XLVII of the Code of Civil Procedure could not, therefore, according to him, be sustained. 6. Controverting the arguments advanced on behalf of the appellant Mr. T. H. Tariq, the learned counsel for the respondent submitted that since new evidence sought to be produced by the respondent was of a decisive nature, it could be a valid ground for allowing the review petition. The impugned judgment, according to him, being perfectly in accordance with the provisions contained in Order XLVII of the Code of Civil Proce­ dure, was open to no exception and as such the appeal was liable to be dismissed, ", We will now proceed to examine the merit of the arguments addressed on behalf of the parties. In order to determine as to whether the review of its judgment allowed by the High Court was in conformity with the requirements of relevant law, a reference to Order XLVII rules 1 & 4 (2) (b) of the Code of Civil Procedure is imperative. Order XLVII reads :- 'Application for review ofjvdgmnet: . Any person considering himself aggrieved : (a) by a decree or order from which an appsal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (0 and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of record or for any other sufficient reason, desires to obtain a review of the decree passed 01 order madfe against him, may apply for a review of judgment to ths Court which passed the decree or made the order." Rule 4 (2) (h) of the Code reads :— "no such application shall be granted on the ground of discovery of new matter or evidence which, the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation." 8 From the perusal of these provisions it becomes clear that to bring his case within the purview of these above listed provisions, the applicant must first prove that the newly discovered evidence, despite the exercise of due diligence by him was not within his knowledge or that it could not be produced earlier. No petition for review on these grounds is to be allowed without a strict proof of such assertions as required under rule 4 (2) (b) or Order XLVII of the Code. The requirement of strict proof is mainly based on the consideration that where a litigant has obtained a judgment A from a Court of justice, be under law is entitled to enjoy its benefits and could not be robed of th'e fruits of the judgment or decree so obtained by him except on solid grounds. Since it is so easy for an unsuccessful litigant to see the weak part of his case and then to remove those weak­ nesses and the lacunas left over in the case. So the rule that permits a review on account of discovery of new evidence has, therefore, been fenced (round with many limitations. Where therefore, a review of -the judgment _|is sought by an unsuccessful party on the ground of discovery of new [evidence great care ought to be exercised and strict proof of the assertion |is to be insisted upon by the Court while allowing the relief of a new trial. 9. The question now, therefore, needing examination is as to whether the order allowing the review passed by the High Court in the instant case was passed in accordance with the requirements as contained in Order XLVII rules 1 and 4 (2) (b) of the Code. We have carefully examined the record including the petition for review and the affidavit filed in support of it. From the perusal of the record it appears that the respon­ dent had the knowledge about the existence of this new evidence when the reference wax still pending in the Court of District and Reference Judge Mirpur. Sh. Iqbal Ahmad X. E. N. appearing as a witness for the Government in his evidence before the Reference Judge recorded on 24-1-19 9, stated that Ifrikhar Shah appellant had applied for the permis­ sion to construct the house but it was refused by the Collector Mangla Dam. The point thereafter, it appears, was not pressed any further by the respondent, and then the petitioner before the Reference Judge. Neither the certified copies of the alleged application and the order of rejection passed thereon by the Collector were placed on record nor any application for summoning the original was moved before the Reference 'Judge. We have with utmost care examined the record including all the interim orders recorded by the trial Court but have not been able to find anything which could show that any effort was made by the respondent in that direction. The evidence of the appellant, on the statement of Govern­ ment Advocate, was closed on 12-3sl969 by the trial Court. In defence Syed Iftikhar Hussain Shah appellant himself appeared as his own witness and got his statement recorded on 2-9-1969, but was not cross-examined on the point. There is no explanation as to why the respondent kept silent, if not earlier, at least from 24-1-1969 till 1-6-1970, when for the first time the Advocate for the-respondent asked the Collector to provide the documents. The petition for review was filed in the High Court on 10-9-1970. In this petition too, it is not even claimed much less proved that respondent had no knowledge of this evidence or that, prior to 1-6-1970 any effort to procure this evidence was made. Thus it could hardly be called a case of the exercise of due care and diligence nor the evidence that was made basis for allowing the retrial by the High Court, could be regarded as newly discovered evidence or that it could not be produced earlier. 10. The point next requiring determination is as to whether a review could be allowed or retrial could be ordered on the sole ground of importance of evidence. We have given our earnest thought to the propo \ c sition and find that a review can only be allowed within the limitations! envisaged under Order XLVII rules 1 and 4 (2) (b) of the Code. | 11. The proposition may yet be looked into from a different angle. Could the importance of evidence be regarded as "Any other sufficient reason" also put a ground for review under the rule ? The answer to this query is in negative because the expression "for any other sufficient reason" is to be interpreted as meaning a reason sufficient on grounds att least analogous to those expressed in the rule. So therefore, to allow aky review or ordering a retrial on the simple ground that the evidence has>| been secured subsequently or it is important, will reduce the relevant rule to the state of redundancy. We therefore, set aside the impugned order and accept the appeal. In view of intricate question of law involved we make no order as to costs. Appeal accepted. (TQM) Appeal accepted

PLJ 1984 (SC) AJK 67 PLJ 1984 (SC) AJK 67 [Appellate Jurisdiction] Present : RAJA MUHAMMAD KHURSHID KHAN, C. J. 1-»Petitioners versus THE STATE—Respondent Criminal Petition of Leave to Appeal No. 1/M. R. of 1984, decided on 4-4-1984. (5) Limitation Act (IX of 1908)—

S. 5—-Delay—Condonation of—Held : Courts though lenient to condone some negligence, gross negligence not to be condoned— Held further : Proof of sufficient cause for delay of each day to be stirctly demanded by courts except in cases of capital sentence where such proposition of law not to be strictly applicable. [P. 69]A (ii) Limitation Act (IX of 1908)— — — S. 5 read with Azad Jammu & Kashmir Supreme Court Rules, 1978— O. XXIII, R. 2— Delay— Condonation of—Sufficient cause for — Held : Ignorance of law accompanied by circumstances not indicating want of good faith and negligence to furnish sufficient grounds for condonation of delay— Held further: Wrong advice given by counsel also to constitute sufficient cause in given case but litigant having no knowledge of law of limitation, taking upon him­ self to determine time not to be said to have acted in good faith or with due diligence. [P. (iii) Limitation Act (IX of 1908)— — — S. 5— Delay— Condonation of— Each day's delay — Explanation of — Party seeking condonation not explaining each day's delay — Held : Omission to explain each day's delay to fatally affect petitioner's case. [P. 70]C & F (iv) Limitation Act (IX of 1908)— -- S. 5— Delay — Condonation of — Held : Person negligently not getting correct information of limitation with due care and caution and allowing period to run out, not afterwards to seek indulgence of court for condonation of delay. [P. 70]D (v) Limitation Act (IX of 1908)— — S. 5 — Delay — Condonation of — Held : Plea of poverty and con­ sultation with some lawyers not ringing true in case to hardly pro­ vide ground for extending period of limitation. [P. 70]£ (vi) Azad Jammu & Kashmir Supreme Court Rules, 1978— -- O. XXIII, R. 2 read with Limitation Act (IX of 1908)— S. 5— Delay — Condonation of — Held : Court not to use its discretion in arbitrary way to override provisions of Limitation Act and Supreme Court Rules merely because of some important point being involved in case. [P. 71]G (vii) Azad Jammu & Kashmir Supreme Court Rules, 1978— -- O. XXIII, R. 2— See : Limitation Act (IX of 1908)— S. 5. (viii) Limitation Act (IX of 1908)-- — — S. 5 — See : Azad Jamrau & Kashmir Supreme Court Rules, 1978 — O. XXIII, R. 2. Mr. Abdul Khaliq Ansari, Advocate for Petitioners. Sardar Rafique Mahmood, Addl. Advocate General for State. ORDER Leave to appeal is sought to impugn the judgment passed by a learned single Judge of the High Court which was announced on 7-11-1983 by the Registrar of the High Court stationed at Mirpur. By this order the peti­ tioners, Qurban Ali and Haqnawaz, involved in a murder case under sections 302/148/149/109, A. P. C. read with section 5 of the Islamic Penal Laws Enforcement Act, 1974, along with some other persons were proceed­ ed under section 512, Cr. P. C. in absentia and finally acquitted by the Disirict Criminal Court vide order dated l 7 -8-!978. The learned Judge in the High Court quashed the acquittal order of the petitioners passed by the District Criminal Court and the case wes remanded to the District Crimi­ nal Court with the direction that the Court shall proceed with their tria! in accordance with law, 2. This petition is barred by 20 days. In view of the objection taken by the Additional Advocate General that the petition is time-barred, I have decided to hear the parties first on the point of limitation. 3, Mr. Abdul Khaliq Ansari, the learned counsel for the petitioners, while arguing on the point conceded that the petition was late by 20 days and there is no legal explanation to condone the delay but all the same since a law point of considerable importance is involved in the petition, the delay, he submitted, ought to be condoned and this would advance the ends of justice. 4, Controverting the arguments Sardar Rafique Mahmood, Additional Advocate General, submitted that there exists no sufficient cause for con­ doning the delay and the petition, being clearly time-barred, does not merit consideration and is liable to be dismissed. 5. I have given my careful consideration to the submissions and have gone through the relevant record. For the proper determination of the point involved relevant facts may bs stated : The judgment by the High Court was announced on 7-11-1983, Application for the copy of the judgment was moved by Qurban AH on 8-11-1983 which was issued to him on 10-11-1983. The petition was filed on 2-1-1984, It would thus appear that even excluding the period which was spent in getting the copies, the petition is late by 18 days. 6. The question arises as to whether circumstances warrant condona­ tion of delay Out of two petitioners, Qurban AH only has moved the application for extension of the period under section 5 of the Limitation Act, 1908, read with Order XXIH rule 2 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, inter alia, on the grounds that the petitioners were not summoned when the judgment was announced and that the peti­ tioners knew not the limitation and some lawyers ill-informed the peti­ tioners that the limitation for the petition for leave to appeal is 60 days. It was also averred that the petitioner is a poor man and had to arrange for money and some time was also spent in getting the relevant documents typed. 7, Under section 5 of the Limitation Act there should be sufficient cause for condonation of delay. Sufficient cause has always been defined as circumstances beyond the control of the party. It is correct that the Courts had been lenient and had been condoning some negligence, i.e., negligence to th«? extent to which it is regarded as human but gross negli­ gence had never been condoned. The Courts had always been strict in demanding proof of sufficient cuuse for every day which has expired after the period of limitation. The above stated proposition of law, however, is not strictly applicable in cases of capital sentence. 8 I believe that the ignorance of law accompanied by circumstances not indicating want of good faith and negligence may, in circumstances of a particular case, furnish sufficient grounds within the meaning of section 5 of the Limitation Act read with»Order XXIII rule 2 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, but it is only correct to the B extent that there is no negligence, no inaction and no want of good faith. A wrong advice given by a counsel may, therefore, in a given case, consti­tute sufficient cause but a litigant, who has no knowledge of the law of limitation, as is said in the present case, does not act in good faith or with due diligence if he takes upon himself to determine the time. 9. As to what is or is not sufficient cause for the purposes of appli­ cation under section 5 of the Limitation Act it would not be advisable to lay any hard and fast rule. Each case has to be considered on its own facts. What may be sufficient cause in one case may well not be sufficient jin another case. In an application under section 5 of the Limitation Act Cjit is the duty of the party seeking condonation to explain the each day's Idelay and unless this is done the delay should not be condoned. 10. On the above settled principle of law, in relation to condonation of delay, let me now see as to whether any case of condonation is made out in this case. There are two petitioners and the condonation is only sought on behalf of one petitioner, namely, Qurban Ali on the grounds referred to above. This means that the other petitioner has nothing to seek con­ donation. Even the petitioner, Qurban Ali who seeks condonation, had entered such grounds in the is petition which do not constitute sufficient cause even on the face of them. The application enters that he had con­ sulted some counsel ; but who were those counsel, names have not been entered. Besides, the judgment was announced in presence of Mr. Abdul Khaliq Aosari, the learned counsel for the petitioners, and they cannot plead lack of knowledge of the date of pronouncement of the judgment. Therefore, explanation put forth by the petitioners does not appear to be satisfactory. In the first instance I fail to understand as to why explaining each day of delay has not been Incorporated in the application for con­ donation. This omission makes the whole affair doubtful. The explana­ tion, therefore, cannot be believed. Secondly, if a person negligently does nor get the correct information of limitation with due care and caution and sleeps over the matter and allows to run out the period, he cannot afterwards seek indulgence of the Court for condonation of the delay. Thirdly, nothing substantial is said that the petitioner, who moved the petition, in any way was hampered in moving the same in time. The alleged plea of poverty and consultation with some lawyers does not ring true and can hardly provide a ground for extending the period of limitation. 11. Besides, the petitioner was represented by Mr. Abdul Khaliq Ansari, a very senior counsel, and naturally he was expected to consult him who, later on. has filed this petition for leave to appeal. The upshot of the whole discussion is that no plausible explanation furnishing sufficient cause has been brought forth to condone the delay. Each day's delay is required to be explained by the petitioners which has not been done in the present case and this omission fatally affects the peti­ tioners' case. 12. Before parting with the case I may record my appreciations for Mr. Abdul Khaliq Ansari, Advocate, who frankly conceded that no suffi­ cient ground has been made out to condone the delay. However, he, as said earlier, submitted that as an important question is involved in the'ease the Court may show its indulgence and condone the delay. 1 regret I cannot agree with the learned counsel. Even if an important point isj involved in a case that would not, in any way, allow the Court to use itsj c discretation in an arbitrary way to override the provisions of the Limitation! Act and the Supreme Court Rules. For the above stated reasons I do not feel inclined to condone the delay. The petition, being time-barred, therefore, stands dismissed. (TQM) Petition dismissed.

PLJ 1984 SC (AJK) 71 PLJ 1984 SC (AJK) 71 [ Appellate Jurisdiction ] Preserr. : RAJA MUHAMMAD KHURSHID KHAN, ACJ & SHER ZAMAN CHAUDHRY, J ABDUL KHALIQUE-Appellant versus THE STATE-Respondent Criminal Appeal No. 2 of 1981, decided on 29-1-1983. (i) First Information Report

Delay in lodging of—Effect of - Held : Delay per se never to be ground" to hold prosecution case doubtful—Held further : Delay to be important only when identity of accused be in dispute or circum­ stances suggest possibility of innocent persons having .been roped in—Delay at best being suspicious circumstance in prosecution case same to put court on its guard in appraisal of evidence. [P. 75J-4 (ii) Criminal Trial—

Evidence—Appraisal of—Held :'Merely because of P. Ws. Having not stated time in terms of hours a«d minutes, time of occurrence, not to be said to have remained in obscurity. [P. 75]B (iii) Criminal Trial— _—Witness — Testimony of — Evidence, appreciation of — Held : Correct legal position to be to have careful appraisal of whole statements and then after carefully sifting evidence, to accept correct and reject incorrect part of it—Held farther : Throwing away of whole statements just because of its being incorrect in one or some of points being wrong, Court to be at its guard and examine evidence with utmost care and.caution. [Pp. 75 & 7b]C PLJ 1978 AJK (SC) 63 & PLD 1970 SC (Pak.) 1? ref. (It) Crimiaal Trial—

Witnesses—Impartial witness — Non-production of—Effect of— Held : Mere fact of presence of some persons other than those produced by prosecution having been admitted by P. W. in itself not to be sufficient enough to cast doubt on veracity of prosecution case if evidence otherwise rings true. [P. 77]D PLJ 1976 Lah. 812 & PLD 1973 Kar. 964 ref. (?) Criminal Trial— —-—Recovery—Defective recovery—Effect of-—Held : Case otherwise if proved by convincing evidence, mere defective recoveries not to be sufficient to destroy prosecution case. [P. 78]£ PLD 1979 SC (AJK) 23 ref. (?!) Pakistan PeiMl Code (XLV of I860)—

Ss, 302/307 & 148 read with Islamic Penal laws Act and Ss. 3, 5, 15 & 24—Murder — Offence of—Conviction —- Evidence, appraisal o f—Four witnesses of occurrence—Their evidence on material points, of a quality to place safe reliance—Sufficient corroboration in evidence—Evidence of independent P. W. above reproach— Medical evidence and recoveries of blood-stained soil and stones from front of door and from inside room as well as from iane where deceased had fallen after having been hit by gun fire by appellant, being of strong corroborative evidence Judgment of High Court, held, well reasoned and based on sound appraisal of evidence — Appeal, having oo force, rejected. [P. 79]F& G Kb. AH Muhammad, Advocate for Appellant. Saja Muhammad Akram Khan, Advocate General for Respondent. JUDGMENT Sher Zamao Chaudhry, J.—This appeal arises out of the judgment of the High Court dated 14-7-1980, whereby the appellant's appeal against his conviction recorded on 30-12-1979, by the District Criminal Court Mirpur was partly dismissed. The facts of the prosecution's case accord­ ing to F. i. R. lodged by Mst. Guizar Begum on 15-3-1975 at about 10-30 p.m. are that her daughter Mst. Shafait Begum was married to Abdul Khalique appellant about 9/10 months prior to the occurrence. While Mst. Manizah Begum her sister was married to Muhammad Rafique deceased. From among the various items of Jewellery given to Mst, Manizah Begum the sister of appellant by her in-laws at the time of her marriage, the gold bangles were however, borrowed ones. These bangles in fact belonged to Mst. Zahida Begum another daughter of the com­ plainant and were borrowed from her on temporary basis. 2. After the marriage things went smooth for a while but trouble seems to have started when Mst. Manizah Begum was asked to return the bangles as those had to be given back to Mst. Zahida Begum. She refused and instead went to her parents' house and left those bangles there. The appellant sided with his sister and started maltreating Msi. Shafait Begum bis wife and thus the relations between the complainant party and the appellant got strained. About 3 weeks prior to the occurrence these gold bangles, through the mediation of Gul Nawaz, the brother of complainant, were however, returned to the complainant party. By the return of bangles the matter should have ended there but it did not. Abdul Khalique appellant kept nursing the grudge against the in-laws of his sister. His attitude got more antagonistic towards his wife Mst. Shafait Begum. Mst. Manizah Begum, his sister, left her in-laws and went to reside with her parents after the return of bangles. On the afternoon of 15-3-1975, as claimed in the F. I. R. Mst. Shafait Begum, after having been beaten by her husband, the appellant, left his house and went to her parents, 3. A short while before evening Abdul Khalique appellant went to the house of complainant. Alongwith him were Abdul Ghani, Muhammad Yunus and Ali Muhammad as 'Punchait members. The object was to bring about a reconciliation between the parties. At the time of their arrival Fazal Hussain, the father of Mst. Shafait Begum and Muhammad Rafique her brother, were not present. Both Fazal Hussain and Muhammad Rafique however, came back while the appellant, Abdul Ghani, Muhammad Yunus and Ali Muhammad were still there. Abdul Ghani initiated the dialogue for reconciliation. Fazal Hussaia complained about the attitude of the appellant towards his daughter Mst. Shafait Begum. The appellant thereafter got up and told the respectables to go away and remarked that he would decide the matter himself. With these remarks he left the house of his in-laws. So did the others except Abdul Ghani. 4. After a while armed with 12 bore gun came back the appellant. He announced that he will kill ail of them. Complainant, her husband Fazal Hussain, Muhammad Siddique s/o complainant. Mst. Shafait Begum her daughter and Abdul Ghani were present in the house at that time. Rafique her son while standing in the door was fired upon by the appellant and was hit at the right side of his face and neck. After this fatal shot the appellant ran away. Fazal Hussain and his son Muhammad Siddique gave a chase. While earning back, when they were still in a lane adjacent to their house they were fired upon and injured. Muhammad Rafique and Fazal' Hussain lost their lives while Siddique was seriously injured as a result of firing by the appellant. After the second f-hot, gun is claimed to have been snatched away from the appellant by Abdul Ghani. The complainant saw her husband and son killed and another son injured. The occurrence was also witnessed by Abdul Ghani, Muhammad Yunus and Mst. Shafait Begum. Accompanied by Abdul Ghani and Gul Bahar, Mst. Gulzar went to the Police station Mirpur and reported the matter to the police at about 10-30 p.m. of the same evening. After the completion of investigation the appellant was forwarded to the District Criminal Court to stand trial under section 302/307 and 148 A. P. C. read with Section 5/15 Islamic Act. 5. After the trial the appellant was convicted and sentenced to life imprisonment under Section 24 read with Section 3 of Islamic Penal Laws Act, for the murder of Fazal Hussain. For killing Muhammad Rafique he had to pay Rs. 45,000 by way of'Diyyat' as Mst. Manizah Begum the w/o Muhammad Rafique, who happened to the sister of the appellant, had compromised. For causing injuries of Muhammad Siddique he was sentenced to 5 years imprisonment by way of 'Tazeer' and Rs. 5,000 as 'Hakoomat-i-Adal'. Dissatisfied with this order of his conviction passed by the District Criminal Court dated 30-12-1979, both the appellant aod the State challenged the correctness of it in the High Court. The appellant by way of appeal and the respondent through a revision petition. The appellant appealed for the quashment of the judgment of the District Criminal Court while the State sought enhancement of the sentence. The learned High Court vide its judgment dated 14-7-1980, upheld the judgment of the trial Court except that its finding on the point of l Hakoomat-i-Adar was set aside. It is this judgment of the High Court the reversal of which is now being sought through this appeal. 6. While arguing the case Kb. AH Muhammad, the learned counsel for the appellant submitted that the impugned judgments of the High Court as well as that of the trial Court suffer from inherent infirmities. The Courts below according to the Seamed counsel, ignored the basic norms of appraisal of evidence and failed to consider some very important legal points involved. The judgment of the High Court could not be sustained, he submitted, for the following reasons: (0 That not only the F. I. R. was delayed but the exact time of occurrence in view of evidence on record was shrouded in obscuri­ ty. This fact, although sufficient to make the prosecution's case doubtful, was not adverted to by the High Court. The judgment therefore, was bad in law. (if) That there being a complete departure from the case disclosed in F. I. R. and a different story developed during the evidence stage was a fact sufficient enough to destroy the prosecution's case yet the point was not appreciated in its correct perspective, (itf) That independent witnesses although admitted to have had wit­ nessed the occurrence yet none was produced. The case therefore, was doubtful. (if) That ail the recoveries were had and could not be used in evidence. () That although the report of the ballistic expert was received fay the police yet withheld, was a fact sufficient to make the whole case doubtful. (vt) That the Courts below also erred on the point of general appraisal of evidence. 7. Taking up the first point regarding the F. I. R. it was argued that since occurrence was alleged to have taken place at about evening time which could be at the best 5/6 a.m., yet the report was claimed to have been made at 10-30 p.m. It is in the evidence that complainant traveled by a Suzuki van. The distance to Police Station could at the most be covered within 45 minutes or an hour. There still was a gap of 3 to 34 hours which remained unexplained. This delay according to the learned counsel casts a serious doubt on the story of the prosecution's case. 8. After going through the evidence it is found that the complainant accompanied by Abdul Ghani and Gul Bahar left her house for Police Station. They first had to walk a distance of about 2 miles. Then Abdul Ghani went to arrange for the transport. It was after some time that the arrangement was made. Besides, we cannot expect the thing to happen strictly in a mechanical fashion. The lady had undergone a heart breaking experience. She had seen bodies of her murdered husband and a son drenched in blood and her second son having been injured and bleeding. The extent of her mental agony and the grief can well be imagined. It must have taken quite a while to recover from the initial shock. Under these circumstances the arguments of the learned counsel for the appellant has no substance. There has been no delay in making the F, I. R. which could adversely affect the prosecution's case. Besides, delay per se, is never a ground to hold the prosecution's, case doubtful. It is indeed of considerable importance only when the identity of the accused is in dispute or the cir;umstaaces suggest the possibility of some innocent persons having been roped in. There is no such suggestion in the present case and the evidence on record warrants no such approach. Delay at the best could be a suspicious circumstance in the prosecution case, which puts the Court on its guard in appraisal of the evidence. As it has already been held that there has been no delay in lodging the F. I. R. in the present case, it will serve no useful purpose to pursue the point any further. 9. With regard to the second point of his submission that even the time of occurrence, in view of the contrary statements of P. Ws. Was uncertain, we find that the plea is not well founded. We have carefully gone through the evidence. Ail the P, Ws, who are witnesses of occurrence are pretty clear about the time which they described as a short while beforei the sun set or the time when the sub was about to set. Simply because thejfl P. Ws. did not state the time in terms of hours and minutes it could notj be said thai time of occurrence remained in obscurity. 10, The learned counsel for the appellant, next argued that there being a complete departure from the case as initially disclosed in the F. I. R. a different story had been developed during the evidence stage as such the • prosecution's case had become doubtful, The conviction therefore, could not be sustained. Elaborating the point the learned counsel pointed out that there had been a complete departure from the prosecution story thae Fazal Hussain and Muhammad Siddique were tired upon and injured wbilt they were passing through a nearby lane after giving chase to the appellant Msi. Gulzar Begum and Muhammad Siddique had changed the original version and in the evidence before the Court stated that Fazal Hassain' deceased and Muhammad Siddique were fired upon and injured while they were in their courtyard and not in the lane. We have checked the evidence and it is found that P. W. Mst. Gulzar Begum the first informant had shifted her stand from the one disclosed in the F. !, R. so did Muhammad Siddique. 1. The question now therefore, is as to what is the effect of it ? Whether whole of their statements ought to be discarded or their evidence is to be sifted. The correct legal position would be to have careful appraisal of the whole statements then after carefully sifting the evidence to accept the correct and reject the incorrect part of it. It will be wrong to throw away the whole statements just because they are found to be incorrect on one or some of the points. The view has consistently been followed by this Court as well as the Supreme Courts of Pakistan. All that lean be said to it is that in such a situation the Court should be at its guard (and examine the evidence with utmost care and caution. Similar was the view expressed by the learned Judges in 'Mohammad Sharif v. State' reported in PLJ 1978 AJK (SC) 63. At page 69 of this judgment the learned Judges in the Supreme Court observed : "The maxim falsus in uno falsus in omni bus is a dangerous one especially in this part of the country, for if whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with," Again in Twaib Khan's case reported in PLO 1970 SC (Pak.) 13 similar was the view of the learned Judge of the Supreme Court. Mr. Justice Sajjad Ahmad observed in the following terms : "The maxim /fl/sus in uuo falsus in omni bus has ali along been discarded by the Courts in this country. Similarly the rule that the integrity of a witness is indivisible, despite its moral virtue has not been endorsed by the superior Courts of this Court without reservations and cannot be accepted as one of universal applica­ tions. In the last analysis as stated in some of the eminent judicial decisions, the grain has to be sifted from the chaff in each case in the light of its own particular circumstances." 11. In the present case though we do not find any fault in the main story by P. Ws, Mst. Gulzar Begum and Mohammad Siddique yet they are found to be incorrect on the point that Fazal Hussain deceased and Mohammad Siddique were hit when they were in the court yard. There is evidence of P. W. Abdul Ohani to the effect that they were in the lane. Besides blood stained stones and soil had been recovered from the lane. The discrepent statements of P. Ws. referred to above are not sufficient to make the prosecution case doubtful. The argument on the point having no force is therefore, rejected. 12. It was next argued that since the presence of the impartial witnesses like that Adalat Khan', Ghulam Ali and Ismail at the scene was admitted by P. W. Abdul Ghani, their non-production as witnesses in the case makes the case doubtful and the conviction unsustainable. Con­ troverting the plea the learned Advocate General instead submitted that the point so raised by the learned counsel for the appellant was without any force for the reasons : — (a) That as the evidence on the record is clear and of a convincing quality it matters not if all the person witnessing the occurrence were not produced by the prosecution as P. Ws. (b) That those persons as pointed out by the learned counsel for the appellant admitted to be present on the scene and are not shown as P. Ws. in the calendar pf witnesses so according to the submis­ sions of the learned Advocate General it could not be said that the prosecution held back those witnesses. (e) That if at all those persons as claimed by the appellant's side were in fact present they might not have shown their willingnes to come forward as P. Ws. It is a general trend that peoples avoid to involve themselves lest they might incur the displeasures and enmity of the other party. (d) That if those persons as claimed by the appellant were in fact present they could very well be examined in defence to shake credit of the prosecution witnesses. 13. Reliance was placed on P.L.J. 1976 Lah. 812 and P.L.D. 1978 (Car. 964. He further argued that though the attitude of some people may be deplorable yet the prosecution case may not be thrown out simpiy on that account. We have gone through these relevant Judgments. In P.L.J. 1976 Lah. 812 relevant page 819 Mr. Abdul Jabar Khan Judge observed that :— "It is common feature in our society that usually people do not offsr themselves as witnesses to support the prosecution case before the plice or in the Court as it entails loss of time as well as earns enemity of those who are being prosecuted." Similarly in ' Abdul Kauf V. State ' (P.L.D. 1978 Kar. 964) Mr. Justice Z.A. Cbanna in para. 8 of his judgment observed :— "It is frequent experience of criminal Courts that many a grue­ some tragedy is enacted with scores of onlookers around yet the assassin is allowed to operate without any let or hinderance and is allowed to escape from the scene with impunity. Not only that these independent onlookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisan." 14. After carefully considering, the arguments of the learned counsel for the appellant and the Advoiate General we are of the view that mere fact that the presence of some other persons other than tho»e produced by the prosecution, is admitted by P.W. Abdul Ghani in itself is nod sufficient enough to cast doubt on the veracity of the prosecution case if the! evidence otherwise rings true. 15. We have carefully examined the evidence. Not a single question had been put to the Investigating Officer as to whether it had come to his knowledge during the investigation that some other persons apart from those mentioned in the calendar of witnesses were present when the crime was committed or if he had examined those others and if not for what reason. Besides the defence was at liberty to examine those others in defence. The attitude though uncommendable and unhealthy yet all the same seems to have developed in our present society that people avoid coming forward as witnesses despite the fact that they had seen the crime having been perpetrated. We cannot be oblivious of this phenomena in our society. It will be unjust to throw the prosecution case away on that score. The position would of course be different if the independent witnesses were available and willing to depose yet were withheld by prosecution. No such position exists in the present case. The argument, therefore, is without any substance. 16. On the point of recoveries it was contended that the recoveries of crime weapons i.e. 1 2-bore gun and the crime empties having been made in most illegal fashion could not be used against the appellant. Besid«s the ballistic expert report with regard to the crime weapon and the crim empties h;sve been held back by the prosecution. This could not be regarded coanecting the accused with the occurrence. 17, After careful perusal of the evidence- we nod ourselves in agree­ ment with the learned counsel for the appsUani. These recoveries under law cannot be used in evidence against the appellant. But it is to be determined as to whether on account of no recoveries or there being defective recoveries the whole prosecution case is to be disbelieved and discarded. The correct position with regard to the recoveries if found defective would be that the main case if otherwise being not of con­ vincing quality would of course be a circumstance having important bearing on the ultimate fate of the case. If however, the case otherwise, is proved aa the basis of convincing evidence mere defective recoveries would not be sufficient to destroy the prosecution case. The conviction could still be recorded if other evidence is found to be of convincing quality and of a nature on which reliance could safely be placed 18. Similar views were expressed in a judgment of this Court in a case titled "M eh tab Khac v. State' reported in P. L. D. 1979 SC (AJK) 23. For the reasons listed above submission on the point is therefore, with­ out any substance. 19. This brings us to the last 'point of objections raised by the learned counsel for the appellant. It was submitted that the learned High Court as well as the trial Court erred on the point of general appraisal of evidence. Basic norms of appreciation of evidence have been ignored, The judgments both by the High Court as will as that of the trial Court were thesefore, according to the learned counsel vitiated. Developing the arguments on the point it was submitted that P, W. Mst. Gulzar Begum the first informant happened to be the wife of Fazal Hussain and mother of Mohammad Rafique deceased. Mohammad S ddique the injured person was her son. She being the interested witness and inimical one her evidence could not be relied upon without a strong and indepen­ dent corroboration. The evidence of injured person Mohammad Siddique a boy of 13 years age was unworthy of any reliance for the similar reason. Besides, their evidence is full of discrepancies and contradictions. It remained uncorroborated as the recoveries were defective and could not be used as corroborative piece of evidence. The evidence of P. Ws. Abdul Ghani and Mohammad Yunus (Mohammad Yunus was declared hostile) could not be regarded as coming from independent witnesses. They were proved on record to be partisan and interested. Looking at the evidence as a whole it was not worthy of any credence. The conviction thus based on the evidence of dubious quality could not be sustained. 20. In the light of the submissions we aow advert to the merits of these. We have carefully gone through the evidence and considered with utmost care. We being alive to the points raised bv the learned counsel for the appellant and the defects pointed out by him, have weighed the evidence of P. Ws, Mst. Gulzar Begum and Mohammad Siddique an injured witness, In the light of the principles regarding the appraisal of evidence as enunciated and listed in the earlier part of our judgment, their evidence on the point of place where Fazal Hussain and Mohammad Siddique were hit, is found to be incorrect. But apart from that their evidence on the main story is found to be truthful. It is of quality on which reliance could safely be placed. Discrepancies oa the point of insignificance hardly matter much. In fact these are bound to be in the statements of truthful witnesses unless of course they are tutored then perhaps parrot like narration could be expected of them, It is always the quality and not quantity of the evidence that matterrs, of course with one exception / s, under the Islamic Penal Laws Act 1974, where in case of 'Qisas' evidence of two male muslim majors is the requirement. But then it was for that reason that the learned District Criminal Court resorted to section 24 read with section 3 of Islamic Penal Laws, Apart from the above stated exception the Courts have always looked for the quality and not the quantity. If evidence is of quality inspiring the confidence then the conviction could be recorded even on the testimony of a single witness. may there by no corroboration. All that matters is that could the Court safely place reliance on such an evidence. Same was the yardstick with the learned Judge Mr. Justice Sinha while deciding the case titled Vedive!?e Thevar y. State of Madras " P, L. D, 1957 S. C. ( India ) 525. Again in Tawib Khan's case P.L.D, 1970 SC '13 _despite the fact that dying declaration was disbelieved and there being no recoveries yet the evidence of the widow of the deceased a witness of occurrence was relied upon by the learned Judges although the occurrence had taken place in the open while the deceased and his widow the P.W. were on their way back after ploughing their field. Same principle was also accepted in P.L.D. 1980 SC 225. In the present case there are 4 witnesses of occur­ rence namely Ms/. Gulzar Begum, the first informant, Mohammad Siddique injured witness, Abdul Ghani and Mohammad Yunus. Their evidence on the material particulars of the case is indeed of a quality that safe reliance can be placed on it. 21. We find no cogent reasons to differ with the High Court an the point of appraisal of evidence, On the point of corroboration it may be stated that it is rule of prudence and sought for only in case where Judges though satisfied on evidence but have some lurking suspicion in their minds. It is in fact a sort of reassurance or what may be termed as a confirmation of their belief about the veracity of the case. If on the other hand the evidence is such that the Court feeis safe in placing reliance on it then the necessity of looking for the corroboratioo is relegated to the point of no importance. 22. From the evidence on record in the case is hand there is sufficient corroboration as well. The evidence of P.W, AbduS Ghani is above reproach. Besides there is medical evidence and recoveries of blood stained soil and stones from the front of the door and then from inside of the room as well as from the lane where Fazal Hussain and Mohammad Siddique had fallen after having been hit by the gun fire by the appellant arc a strong corroborative evidence. The impugned judgment of the High Court is well reasoned and based on sound appraisal of evidence. We find no fault in it. In ultimate analysis finding no force in the appeal we reject it. However, before parting with the case we would like to state that in view of the mandatory provisions of la.w section 382 (b) Cr. P. C amended Ordinance of 1982, the appellant be given the benefit of period permissible under it towards the adjustment of his term of imprisonment. The jail authorities may be informed accordingly. (Aq, By.) Appeal rejected. PLJ 1984 SC (AJK) 80

PLJ 1984 SC (AJK) 80 PLJ 1984 SC (AJK) 80 [Appellate Jurisdiction] Present : Raja MUHAMMAD KHURSHID KHAN, C. J. MUHAMMDD AKBAR—Petitioner Versus MUHAMMAD HUSSAIN and 5 Others—Respondents Civil Petition for Leave to Appeal No. 8/M. R, of 1983, decided on 31-3-1984. (i) Evidence Act (I of 1872)- ~—S. 114—Party—Non-appearance as witness—Presumption regard­ ing—Held : No adverse presumption to be drawn against person failing to depose in suit filed against him where there be other evidence on matter—Held farther : Ordinarily non-appearance of party as witness to discredit truth of his case, yet in case of there being other evidence ringing true, non-appearance of party not to discredit his case which otherwise stands proved. [Pp. 81 & 82]X AIR 1956 Him. Pra. 4 ref . (ii) Leave to Appeal— -Grant of—Held : Petition for leave to appeal not to be accepted as matter of routine to raise false hopes in mind of party—Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)—S. 42. [P. %2}B (iii) Azad Jammu & Kashmir Interim Constitntion Act (VIII of 1974)—

S. 42—See : Leave to appeal. Mr. Muhammad Aynb Sabir, Advocate for Petitioner. Raja Lehrasap Khan, Advocate for Respondent No. 1. ORDER This petition for leave to appeal is meant to discredit the judgment passed by a learned single Judge of the High Court on 19-2-1983, whereby the judgment and decree passed by the civil Court of Original Jurisdiction, Bhimber, and affirmed on first appeal by the learned District Judge, Mirpur, was maintained and the appeal moved by the appellant was dis­ allowed with posts, Iks controversy has arisen in the following way. The land in suit left by Muhammad Ramzan (deceased) devolved on Mst. Muhammad Bibi, his widow, and mutation was also attested in her favour. The lady then sold the land to Muhammad Hussain, the caveator, by way of a registered sale-deed. The plaintiff-appellant filed a declaratory suit to avoid this sale n the Court of Sub-Judge, Bhimber, inter alia, on the grounds : (.) that Mst. Muhammad Bibi was not the widow of deceased, Muhammad Ramzan ; and ! !) that they are in possession of the suit land and their possession by aflux of time had matured into title. The learned Sub-Judge vide his judgment and decree, dated 19-8-1979 disallowed the claim put forth by the appellant resulting in the dismissal, of his suit. First appeal moved before the District Judge also failed vide order dated 4th May, 1982. Second appeal, submitted by the appellant before the High Court, was also disallowed on 19-2-1983, Hence this petition for leave to appeal to assail the said judgment of the High Court. I have heard the learned counsel for the parties in support of their respective contentions. The learned counsel for the petitioner, Mr. Muhammad Ayub Sabir, has seriously criticised the mode of appreciation of the :'' idence by the Courts below. In his view the evidence fairly establishes the claim put forth by the appellant, but the learned Courts erroneously found against the appellant. Elaborating his point of view he submitted that Mst, Muhammad Bibi was the relevant person to repudiate the allegation that she is not the widow of Muhammad Ramzan (deceased), bat she abstained to come into the witness-box to deny this allegation and the presumption under Section 114 of the Evidence Act would go against her. He further maintained that the statement of Mst. Sakina Bibi has wrongly been relied upon by all the Courts below ; especially when only a copy of her statement was placed on record. As against this it has been argued by Raja Leharasap Khan, the learned counsel for the respondent, that the lower Courts have returned well reasoned out judgments which do not call for any interference, especially when the issues decided relate to factual aspect of the case. He further maintained that this Court ought not to appreciate the evidence afresh even if this Court may be on the evidence inclined to have a diffe­ rent view. I have given my earnest consideration to the arguments advanced at the bar and have also examined the relevant record. My view is-that the judgments recorded by the Courts below need no interference. My reasons are (/) The words-may presume'in Section 114 would indicate that it is for the Court to make or not to make a 'presumption according to the circumstances of the case. Besides, no adverse presump uon need be drawn against a person who fails to depose in a suit tiled against him when there is other evidence on the matter, both documentary and oral. This view of mine is in line with case reported as A, I. R. 1956 Him. Pra 4. Ordinarily, nonappearance of a party as a witness would discredit the truth of his case, yet where there is other evidence which rings true, then non-appearance of a party would not discredit his case, which stands otherwise proved. (i/) All the Courts below after critical survey of the oral and docu­ mentary evidence found that Mst. Muhammad Bibi being the wife of Muhammad Ramzan was entitled to transfer the suit land to the respondents and this finding needs no interference. (Hi) Had the allegation of the appellant that she was not the widow of Muhammad Ramzan been true the appellant in the natural events would have been at guard to see as to in whose name the mutation was entered after the death of Muhammed Ramzan. This omission on the part of the appellant has rightly been taken into account by all the Courts below to discredit the claim put forth by the appellant. (/v) The entries in the pedigreetable also, as recorded by all the Courts, bear out the fact that Mst. Muhammad Bibi was the widow of Muhammad Ramzan. (v) I could not find out in the judgments any fact which may point out any misreading or non reading of the evidence nor any such defect has been brought to my notice. (vi) The question of adverse possession has also rightly been adjudica­ ted upon against the appellant on very cogent reasons. The appellant being co-owner of the suit land with Muhammad Ramzan (deceased) would be considered to hold the land as cosharer and there is no evidence of open and hostile denial of the right of the other co-sharers. There is also nothing on the record to show that the appellant had ever asserted their hostile title to the knowledge of Muhammad Ramzan (deceased) or his legal heirs after his death. g It should be remembered that petition for leave cannot be accepted as Sga matter of routine to raise false hopes in the mind of a party. Mr. Muhao-usad Ayub Sabir, 1 am happy, has put in his best to argue this petition, but unfortunately he could not overcome the inherent weakness in the case. With the above observation the petition for leave to appeal stands dismissed. (TQM) Petition dismissed.

PLJ 1984 SC (AJK) 83 PLJ 1984 SC (AJK) 83 [Appellate Jurisdiction] Present : SARDAR SAID MUHAMMAD KHAN & SHER ZAMAN CHAUDHRY, JJ THE STATE-Appellant versus Sheikh MANZAR MASUD—Respondent Civil Appeal No. 6 of 1980, decided on 9-5-1984. (i) Criminal Procedure Code (V of 1898)—

S. 403— Auire fois acquit — Principal of—Held : Person already acquitted or convicted fcr offence not to be (again) tried od same facts. P. 84]/f (ii) Discharge & Acquittal—

Complaint—Dismissal of on technical grounds—Effect of—Com­ plaint dismissed on technical grounds such as lack of jurisdiction or for want of proper sanction—Held : Order made to be that of discharge' and not that of "acquittal". [P, ]84£ 1968 P. Cr. L J 1707 ; PLD 1962 SC 397 & AIR 1949 PC 264 ref, Mr M. S Farooqi. Special Public Prosecutor for State Mr Mohammad Yunus Sarakhvi, Advocate for Respondent. JUDGMENT Sardar i>aid Muhammad Khan, J.—~This appeal has been directed dgasnst the order of the Special Court dated 19-4-1960, whereby the com­ plaint against the appellant under the provisions of Azad Jammu and Kashmir Holders of Representative Offices (Trial of Offences) Ordinance was dismissed on the ground that the Special Court had no special jurisdic­ tion to trv the case, - Sh Manzar Masud, respondent, was charged lor committing various offences in his capacity as Speaker of the Azad Jamiiiu & Kashmir Legislative Assembly. The learned Judge of the Special Court recorded the evidence of the prosecution as> well as that of the offence, but instead of disposing of the case on merits, he dismissed the complaint on the ground that the Speaker of the Azad Jammu and Kashmir Legislative Assembly was not included in the definition of 'Holders of Representative Offices' and as such the Special Court had no jurisdiction to try the charges levelled against him. Consequently, the present appeal was filed to challenge the validity of the order passed by the Special Court. In the memo, of the appeal the judgment of the trial Court was assailed on the various grounds, but during the course of arguments, the learned counsel for the appellant passed only one point which was to the effect that as the complaint was not dismissed on merits, the order passed should have been that of 'discharge' and not that of 'acquittal'. He has argued that the impugned judgment may be amended to the extent that the accused could be only discharged and could not be acquitted, as has been done by the Special Court. The learned counsel for the appellant has contended that the order of acquittal would create a bar for a fresh trial of the accused-respondent on the same charges, 3. It may be observed that the principle of 'autrefois acquit' is well established principle of law and as such no person can be tried for an offence on the same facts on which he has already been acquitted or con victed. The aforesaid principle is recognized under section 403 Cr. P.C., which bars the trial of person for the same offence on the same facts or on the same facts for any other offence for which a different charge from the one made against him might have been made under the relevant pro­ vision of the Cr. P. C. Even apart from the provisions contained in Section 403 Cr. P C., the aforesaid principle is recognized in the judicial system of all the civilized States. 4. Now the question, which needs determination, is as to whether in the instant case the order which could be passed should have been one that of'discharge'or that of'acquittal'. In "State v. Karam Ali" (1968 P. Cr. L. J. 1707), the accused was acquitted solely for want of proper sanction for prosecution. It was held by the learned Judges that such order of acquittal does not operate as an 'order of acquittal' but of 'dis­ charge', and the principle that no one can be tried a second time for the same offence was not applicable in the facts of that case. 5. In case entitled "Muhammad Afzal Khan v. The State" technical grounds such a lack of jurisdiction or for want of proper sanction, the order to be made is that of 'discharge' and not that of'acquittal'. It may be observed that even if the present appeal not have been lodged, in our view, a fresh complaint in the instant case would have been barred on the principle of autrefois acquit'. 8. In the light of what has been stated above, we accept the appeal to the extent that the order of acquittal passed by the Special Court would be deemed to be the order of 'discharge' and not that of acquittal. (TQM) Appeal accepted.

PLJ 1984 SC (AJK) 85 PLJ 1984 SC (AJK) 85 [Appellate Jurisdiction] Present : SARDAR SAID MUHAMMAD KHAN & SHER ZAMAN CHAUDHRY, JJ MANZAR MASUD SHEIKH—Appellant versus CHIEF SECRETARY, AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR, Muzaffarabad—Respondent Civil Appeal No. 48 of 1979, decided on 9-5-1984. (1) Holders of Representative Offices (Disqualification) Ordinance, 1979—

S. 7 (7-A) read with Azad Jatnmu & Kashmir Interim Consti­ tution Act (VIII of 1974)—S. 31 (2) (a)—Holders of representative offices—Disqualification of—Advisor to council—Law regarding— Validity of—Ordinance so far it related to matters relating to Adviser to council not promulgated on advice of Chairman of Council — Held : Ordinance, so far as it related to onduct of Advisors to council, being violative of Constitution Act to be void. [P. ]A (ii) Holders of Representative Offices (Disqualification) Ordinance, 1979—

S. 7 (7-A) read with Azad Jatnmu and Kashmir Interim Constitu­ tion Act (VIII of 1974)—S. 34—Holders of representative offices- Disqualification of—Speaker of Assembly—Protection of—Charge levelled against appellant pertaining his conduct in his capacity as Speaker of Legislative Assembly—Held : Conduct of appellant being not open to scrutiny, charge levelled against appellant being in viola­ tion of Constitution, same to fall on that score (alone). [Pp. 88 & 89jfl (iii) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)— ——S. 31 (2) (a) —See : Holders of Representative Offices (Disqualifi­ cation) Ordinance, 1979—S. 7 (7-A). (iv) Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974)—

S. 34-See : Holders of Representative Offices (Disqualification) Ordinance, 1979—S. 7 (7-A). Mr. B. A. Sheikh, Advocate for Appellant. Sardar Rafique Mahmood. Advocate General for Respondent. JUDGMENT Sardar Said Muhammad Khan, J.—This appeal has been preferred under sub-section (7-A) of Section 7 of Holders of Representative Offices (Disqualification) Ordinance, 1979, against the judgment of the Disquali­fication Tribunal dated 26-9-1979 2. Sheikh Manzar Masud, appellant, was charged with various allegations and a reference was made to Special Tribunal constituted under the provisions of Holders of Representative Offices (Disqualifica­ tion) Ordinance (hereinafter shall be called the Ordinance). The appellant was absolved of all other charges except the following three charges on which he was found guilty under the provisions of the Ordinance :— (/) that during the tenure of the office as Speaker of A/ad Jammu and Kashmir Legislative Assembly, Mr. Manzar Masud was allotted a Car No. AJK 3038 for his official use but he even after the relinquishment of his office as such, retained the Car for his personal use without any entitlement against rules and despite notices issued to him for the return of the same, but it was not returned ; (;'i) that during the General Election in Pakistan held in March, 1977 while he was an Advisor to the Prime Minister of Pakistan for A K. Council, drew an amount of Rs. 10.756/- as T.A./D.A. from the Government Exchequer, showing the journeys under­ taken in performance of his official duty whereas he, in fact under­ took the tours of various parts of Pakistan in connection with Election Compaign of the candidates of the People's Party and actively participated in the processions and meetings held by the candidates of the Assemblies (National as well as Provincial) for the purpose of canvassing in their favour and while doing so, the official vehicle was also improperly used for him ; and (Hi) that on 15-4-1975 (it may be taken as 16th) when Mr. Manzar Masud was Speaker of the Azad Jammu and Kashmir Legislative Assembly, took part in the proceedings of the Assembly pertain­ ing to -vote of non-confidence' against the then President and cast his vote against the provisions of the Constitution and rules framed thereunder and also asked, in writing, the Chairman (of the Session) who was illegally appointed by him as such, to violate (the provisions of the Constitution as well as rules there­ under) in the manner as he himself did." 3. It is evident from the above listed charges that charges Nos. (i) and (Hi) were levelled against the appellant in his capacity as Speaker of the Azad Jammu and Kashmir Legislative Assembly, whereas charge No. (ii) was levelled against him as Advisor to the Azad Kashmir Council. 4. Mr. B. A. Sheikh, the learned counsel for the appellant, has argued that the appellant could not be held guilty on charge No. (/), listed above, because the 'Speaker' of the Azad Jammu and Kashmir Legislative Assembly was not included in the definition of 'Holders of Representative Office' in the relevant Ordinance which was in force at the time of initia­ tion of the proceedings against the appellant. The learned counsel has further argued that a subsequent amendment, whereby the office of the 'Speaker' was also included, in the definition would not change the position to view of the verdict of ..his Court in a case reported as Chief Secretary Azad Jammu and Knstamir v. Sardar Sikandar Hayat Khan" [PLJ 1982 S.C. (A J & K.) 141J, wherein it has been held that law altered during the pendency of action would not effect the rights of the parties and their rights and obligations are to be determined according to law which existed at the time of initiation of action and not according to law existing at the time of the judgment of the order. It was further opined in the said case that only exception to the aforesaid general principle of law is that when law relates to matter of procedure it would operate retros­ pectively. 5. In the instant case the subsequent amendment, whereby the office of the 'Speaker' was also included in the relevant provisions of the Ordinance, was not relied or pressed before the ribunal and the impugned judgment finds no refere ce to that effect. The learned counsel for the respondent did not controvert the arguments advanced by the learned counsel for the appellant and did not base his arguments on the said amendment. 6. Mr. B. A. Sheikh, the learned counsel for the appellant, has argued that the Tribunal has misconstrued the relevant provisions of the Ordinance and erred in holding thut as only a Member of the Legislative Assembiy. which is included in the relevant provisions of the Ordinance, could be elected as -Speaker, the appellant could rightly be found guilty in his capacity as Member of the Legislative Assembly despite the fact that he was not charged in that capacity. The learned counsel for the respon­ dent supported the judgment of the Tribunal by arguing that as only a Member of Legislative Assembly could be elected as Speaker of the Assembly, it would be presumed that the appellant was a Member at the time when he misused his power or position and thus he was rightly found guilty of charge No. (/) listed above. ". We have given our earnest consideration to the argument advanced by the learned counsel for the parties with regard to the validity and proof of charge No. (/), mentioned above. A perusal of the aforesaid charge would reveal that according to the referring authority Car No. AJK~3038 was allotted to the appellant when he held the office of the Speaker of the Legislative Assembly, but he did not return the Car when he relinquished the said office and retained the car for his personal use. It is evident that according to the charge, the misconduct, if any, was committed after the relinquishment of the office of the Speakership by the appellant and not during the period when he was holding the said office. 8. Now the next question arise is as to whether after leaving the office of Speaker, he held any other office which could be termed as representative office within the meaning of the relevant definition given in the Ordinance. The findings of the Tribunal or that he committed mis­ conduct because he retained the official car when he. was Member of the Azad Jainmu and Kashmir Legislative Assembly and was Advisor to the Azad Jammu and Kashmir Council. We have asked the learned counsel for the respondent to show us from the record that after the relinquishment of the office of the Speaker, the appellant still remained the member of the Legislative Assembly. Whether after vacating the office as Speaker the appellant remained the Member of the Azad Jammu and Kashmir Legisla­ tive Assembly, is a question of fact and was to be proved by some tangi­ ble evidence. There is not an iota of evidence on the record to sub­ stantiate the contention that the appellant had enjoyed the status of Member of the Azad Jammu and Kashmir Legislative Assembly during the relevant period when he retained the official car without any legal Justification, So far as the office of Advisor to the Council is concerned, in view of the provisions of Section 31 (2) (a) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with schedule third to the said Act, only the Council had the power to legislate with regard to the matters concerning its Advisors and as such the Ordinance in question, so far as it related to the conduct of the Advisor or for that matter the appellant could be only promulgated by the President of the Azad Jammu and Kashmir on the advice of the Chairman of the Council and not otherwise. It is not con­ troverted that the Ordinance in question so far it related to the matters relating to Advisor to the Council was not promulgated on the advice of the Chairman of the Council. Thus, we have no hesitation in holding that the Ordinance, so far as it related to the conduct of Advisors to the Council being violative of the Constitution Act, 1974, is void and no charge could be sustained against the accused-appellant in that capacity. It follows from what has been stated above that charge No. (i), listed above, has not been brought home against the appellant. 9. So far as charge No. (//), above mentioned, is concerned that too pertains to the capacity of the appellant as Advisor to the Azad Jammu and Kashmir Council and as such this charge must also fail on the ground stated above. 10. Coming to charge No. (Hi) listed above it may be observed that the learned counsel for the appellant has referred to Section 34 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and vehe­ mently argued that the appellant was not liable to any proceedings in any Court because the charge levelled against him pertains to his conduct as Speaker of the Assembly. For appreciating the point the relevant part of Section 34 is reproduced as under : — S. 34. General Provisions regarding Council etc. (1) The validity of any proceeding in the Council, the Assembly or a joint sitting shall not be questioned in any Court. (2) An Officer or member or an authority in whom powers are vested for the regulation of proceedings, conduct of business, maintain order in the Council, the Assembly, of joint sitting shall not, in relation to the exercise by him of any of those powers, be subject to the jurisdiction of any court. (3) A member of, or person entitled to speak in, the Council, the Assembly or a joint sitting shall not be liable to any proceedings in any Court in respect of anything said by him or any vote given by him in the Council, the Assembly or a ioint sitting or in any Committee thereof. (4) (5) (6) 11. It is evident that charge No. (///) mentioned above pertains to Blche conduct of appellant in his capacity as Speaker of the Azad Jammu and (Kashmir Legislative Assembly. The matters relating to the exercise of powers by the appellant as Speaker of the Legislative Assembly ant question regarding the use of right of bis vote as member of the Assembly clearly fall within the ambit of the aforesaid Constitution provisions and thus the appellant is protected from any proceedings in any Court or law. His conduct as Speaker is not open to scrutiny in view of the aforesaid provision. Thus, the charge being violative of the Constitution could not be levelled against the appellant and as such must fall on that score. In the light of what has been stated above, we accept the appeal set aside the impugned judgment and absolve the appellant from all the three charges listed above. (TQM) Appeal accepted.

PLJ 1984 SC (AJK) PLJ 1984 SC (AJK) 99 I Appellate Jurisdiction] Present . RAJA MUHAMMAD KHURSHID KHAN, C. J. & SARDAR SAID MUHAMMAD KHAN, J MUHAMMAD AFSAR and 6 Others—Appellants versus SHAH WALI and 2 Others—Respondents Civil Appeal No, 21/M.R. of 1982, decided on 12-5-1984. (i) Civil Procedure Code {V of 1908)—

O. VI, R. 17—Pleadings—Amendments in—Held: Court should be liberal in allowing amendment of pleadings especially in cases of clerical error or bona fide wrong description of property. [Pp. 100 & 101].4 (ii) Civil Procedure Code (V of 1908)-

O. VI, R. 17—Pleadings—Amendment in—Amendment propose not changing character of suit or cause of action but simply rectifying clerical error in substituting correct survey numbers—Held : Court to be competent to allow amendment to correct misdt of property (even) after expiry of limitation. [Pp. 101 & U. AIR 1936 Rang. 508 ; AIR 1937 Lab. 895 ; AIR 1914 Lsh, 263 ; AIR 1922 Ail. 81 ; (1880) 2 All. 832 ; (1885) 9 Bom. 373 ; (1894) 19 Bom. 320 ; (1895) J7 All. 288 ; (1»92) 15 Mad. 417 & 51 Gal, 845 r«f 1982 CLC 577 distingaished. Raja Mohammad Siddiq, Advocate for Appellants, Agha Ashiq Hussain, Advocate for Respondents, JUDGMENT Raja Mohammad Khurshid Khan, C. J.—The facts relevant for the dis­ posal of this appeal, by leave, are that one Hukam Dad sold the suit land measuring 10 kanals 3 marlas comprising field No. 419 situate in the area of village Majwal, Tehsil Kotli, to three persons, namely, Khushi Muhammad, Muhammad Shafi and Nek Muhammad on 10-7-1964. The appellant Nos. 1 to 6 to this appeal are the heirs of Khushi Muhammad and Muhammad Shafi who bave died after the execution of the saledeed. 2. Shah Wali, respondent No. I, pre-empted the suit land by way of a regular suit on 3-6-1965. In the plaint, while giving description of the suit land, instead of survey No. 419, survey No. 359 was entered It was about seventeen years after the suit was filed that the respondent (plaintiff) moved an application on 27-2-1982 seeking permission to amend the plaint so as to substitute survey No. 419 for survey No. 399. In this respect the pMustsil-respuudent claimed that since mention of survey No. 359 in the plaint was due to inadvertence, he may be allowed to substitute it for the correct survey number which is 419, His case was and is that as the land ia suit was mutated under No. 359, he and the scribe under the mistaken belief entered in the plaint the same as the field number comprising the isnd sold, :i The learned Sub-Judge, vide his order dated 28-3-1982, allowed the amendment claimed. Dissatisfied with the order of the Sub-Judge, the appellants moved a revision petition before the High Conrt to assail she -aid order which was dismissed vide order dated 27-5-1982. The dis­ missal was recorded on the ground that since the mention of wrong survey liumber was a clerical mistake, the amendment was rightly allowed by the trial Judge, Hence this appeal, by leave, to call up and quash the said judgment of the High Court, 4, Raja Muhammad Siddique, the learned counsel for the appellants, uai argued that it is not a case where the mistake, as held by the High Court, be regarded as clerical one. In his e^imation the amendment has changed the whole complexion of the case and has also taken away a right accrued to the appellants by lapse of time. Elobrating his point of view lie maintained that at the time the amendment was allowed the claim of the respondent to pre-empt the suit land had already become time-barred 4fid, therefore, the amendment could not be allowed to bring it within : .imc. The sum total of the arguments of the learned counsel is that it was not a clerical error justifying amendment and even otherwise the aroendfnent allowed by the trial Court, after the period of limitation was an illegal exercise of the discretion. In support of his view point regarding limitation the learned counsel has referred us to a case reported as 'Syed Kha.dta Ail Shah and others v. The Additional District Judge. Sheikbupur; »nd other f i%2 C.L.C. 577). / A-. w,gaiiist this Agha Ashiq Hussain, the learned counsel for the iw>pj>uiieiHs. has contended that the entry of wrong survey number in the plaint vas purely a clerical error and insertion of the correct survey number would neither change the complexion of the suit nor it could be said that the amendment had taken away the right accrued to the appel­ lants. It has further been contended that the amendment in the present case lakes effect nunc pro tune. In support of this proposition, the learned counsel has cited ' Krishna Prasad Singh and another v. Ma Ye and others' (A.I.R. 1936 Rangoon 50$) and 'Sodhi Lai Singh v. Firm Lala Bihari Lai—Lakshari Mai and another' (A.T.R. 1937 Lahore 895) 0. We have given our best consideration to the arguments addressed ,<.'. she bar and have perused the authorities cited by the learned counsel t'bv the parties, We are of the view that the order of the learned Judge in ste High Court is perfectly legal and needs no interference for the reasons 10 follow 7, The most important point for determination m this case is as to whether she amendment, allowing the plaintiff to substitute the survey number has taken away any existing right of the appellants ? If that is so JtheK, of course, the amendment may not be allowed. Otherwise there is jno reception to the well honoured principle that the Courts should, be liberal and allow amendment of pleadings especially in cases where there has been clerical error or bonafide wrong description of the property. In the present case the amendment proposed does not change the character of the suit or cause of action. It cannot be therefore, said that the original suit, as contended, would be substantially changed by the amendment The amendment simply rectifies a clerical error in substituting the correct survey number, 8. So for the point of limitation is concerned, there is ample autho­ rity for the proposition that when ai amsndaiant has, hsen allowed by the Court and a dace has been fixed by the Court for filing the amended plaint and the amended plaint has been filed within the time allowed, the presentation of the amended plaint relates back to the original presentation of the plaint and the date of original presentation of the plaint has so be taken to be the date of institution of the suit for the purpose of Section 3, Limitation Act, and this principle can aptly be applied to the amendment sought for to correct misdescription of the property us is done in the present case. 9. The two cases cited by Agha Ashiq Hussain, referred to above and especially the latter one Sodhi Lai Singh v. Finn Lala Bihari (A I.R.. 1937 Lab. 895), are on a!! four with this view of ours. In the latter case it has been observed :-— 'Where an original application for adjudication is made in time but the Court allows the amendment to correct the misdescrip­ tion of the property after expiry of limitation, such amend­ ment neither alters the character of the claim nor introduces a new cau<e of action, and in such cases the amendment take.-. effect nunc pro iimc." This view was also owned in 'Jalal Din i. Qaiai Din' (A.l.R 1914 Lais. 263) and 'Bhagirathi Shukul v. Chandra Harihar Patak' (AIR 1922 All. 81), where similar amendment correcting misdescriotion of property was allow­ ed to be made even on appeal long after the period of limitation had passed. On this point we would also like to refer to the following case law which subscribe to our view :— 1. 'Ram Lai v. Harrison' (1880) 2 All. 832). 2. The New Fleming Spinning and Weaving Co. Ltd. v. Kessowjioaik' (1885) 9 Bom. 373). 3. 'PateJ Mafatlal Narandas s. Bai Parson 1 (1894) 19 Bom. 320). 4. 'Barkatun-Nissa v. Muhammad AH' (1895) 17 All. 288. 5. 'Saminatha v. Muthayya' (1892) 15 Mad. 417). 6. -Naba Kumar Chowdbury r, Higheazany' (51 Cal. 845). For the above stated reasons we hold that in the present case the Court was competent to allow the amendment to correct the misdescription of j property after the expiry of limitation because such amendment neither C alters the character of the claim nor introduces a new cause of action and, m such cases amendment takes effrct nunr prn rune Ths amendment jonly aims at correcting a clerical error which does not, in any way, change Ithe character of the suit or the cause of action. .10. The case 'Syed Khadim Ali Shah and others i. The Additional District Jodge, Sheikhopnra and others' (1982 C. L. C. 577), cited by Raja Muhammad Siddique, is distinguishable. In that case the land was sold to four persons namely, Khadim Ali Shah, Syed Shabbir Hussain Shah, Syed Munir Hussain Shah and Syed Murad Ali Shah sons of Syed Asghar Ali Shah by a registered sale-deed dated 15-4-1974. A suit for pre-emption was filed on the 4th of April, 1975. This suit was filed against (1) Syed Khadim Ali Shah son of Sved Munir Hussain Shah (2) Syed Munir Hussasn Shah, and (3) Murad Ali Shah sons of Syed Asghar Ali Shah. The name of the 4th vendee, namely, Syed Shabbir Hussain Shah was totally omitted and the parentage of Syed Khadim Ali Shah was also given incorrectly as Syed Munir Hussain Shah. The defendants filed their written statement on the 8th of July, 1975 in which they pointed out the error in the parentage of Syed Khadim Ali Shah and the omission of the name of Syed Shabbir Hassain Shah from the array of defendants. It was almost after about 34 months after the written statement that an application was sub­ mitted b"y the plaintiffs for amendment of their plaint under Order VI rule 17 of the Code of Civil Procedure. It was claimed that it is a clerical error and permission may be granted to correct the plaint so as to correct the parentage of Syed Khadim Ali Shah and to put serial No. 2 against the name of Syed Shabbir Hussain Shah. Another application was filed on 17th January, 1976 in which further permission was sought to enter the name of Syed Shabbir Hussain Shah also as his name, as said earlier, was not at all recorded in the plaint and it was incorrectly stated in the first application that his name was entered in the plaint. The learned trial Court disallowed the application and held that the equity does not help an indolent but helps only the vigilant. The learned District Judge, in revision, held that the learned trial Judge has exercised the discretion with material irregularity in disallowing the amendment prayed for by the pre-emptor and allowed the amendment. However, on appeal before the Lahore High Court, Justice Aftab Hussain, J. (as he then was) restored the judgment of the trial Court with the following observations :— "The learned Additional District Judge has in fact acted as an appellate Court. He found that the name of Syed Shabbir Hnssain Shah was not at all recorded in the plaint. What was recorded, was the name of Munir Hussain Shah as parent of Syed Khadim Ali Shah. In these circumstances it was clear case of omission of the name of Syed Shabbir Hussain Shah. Under section 22 of the Limitation Act, the amendment if allowed would not be effective retrospectively but will take effect from the date on which the amendment is permitted to be made. The learned Additional District Judge has drawn an inference of variance merely from the fact that the application for amendment was made before the issues were framed. He has, however, missed the point that although the objection was raised specifically in the written statement, but it was 3£ months after the written statement was filed, that the application for amendment was submitted. If the plaintiffs had been vigilant they would have at once tried to correct any clerical error in the plaint. They should be considered to be uware of the legal position that Shabbir Hussain Shah not being party, the suit against him had already become barred by time and if they did not rush immedi­ately to the Court after their attention was drawn to the alleged error in the plaint, the discretion under Order VI, rule 17, C. P. C., could not be exercised in their favour." It would thus appear that the facts of the case decided by Aftab Hussain, J., are altogether distinguishable and have no similarity to the facts of the instant case. In that case by omitting one of the vendees to be impleaded as a party the plaintiffs instituted the suit which was not tenable at all and even after the plaintiffs had been made conscious of the defect, they allowed the period of limitation to expire which fact has allowed a A'i'aMe r ght tn reside in the defendant (vendee omitted) and obviously .-jta a rignt could not be snatched away by way of an amendment after the period of limitation. But here in this case no such situation is available. 11. We may be here permitted to repeat that in the instant case no alternative case which is inconsistent with the original plaint has been set up by the respondents on account of the amendment. The amendment allowed only substitutes the correct survey number and cannot, by any logic, be said to change the character of the suit. The copy of the mutation, it is submitted, is indicative of the fact that the property which is subject of the dispute was mutated under No. 359 and this fact, in our view, has put the respondent on wrong track not to enter the correct survey number i.e., 419. It is significant that .para No. 1 of the plaint contains correct description of the property sold. The name of the vendee ana the name of the vendor are also correct but it only incorporates incorrect survey number. The defendants admitted the execution of the sale deed of the suit land in their written statement. The mistake being a formal defect removal of it bv an amendment has rightly been allowed. In somewhat similar circumstances Kaikus, J., in 'Mst. Fatima v. Sardara' :'P L D, 1956 Lah. 474) observed as under :— incorrect reproduction in plaint of the Khasra numbers, which we-e rhe subject of the suit, was a defect of a very forma! nature, while correct Khasra numbers had been set out in the deed f gift, the basis of the suit, and while the Khata numbers were oarrectiy mentioned in the plaint itself. Such a defect should be allowed to be corrected in Court without an adjournment." She above stated reasons this appeal fails with costs. tSHR i Appeal dismissed.

PLJ 1984 SC (AJK) 103 PLJ 1984 SC (AJK) 103 [Appellate Jurisdiction] Present : SARDAR SAID MUHAMMAD KHAN & SHER ZAMAN CHAUDHR JJ Shaikh MANZAR MASUD—Appellant Versus THE STATE—Respondent Criminal Appeal No, 2 of 1980, decided on 9-5-1984. (ij Public Office ('Misconduct) Ordinance, 196S ... —S. 6 (5)~-Mernber Legislative Assembly - Misconduct by— Conviction for—Material allegation against accused remaining same—Mere difference in status in which offence committed also not material variation between facts alleged and tacts proved—Held: Mere fact of appellant having not been specifically charged for having committed offence in his capacity as Member of Legislative Assembly not to render his conviction illegal. [P. 107]f.' PLJ 1983 SC (AJK) 140 & PL] !9H3 SC (AJK) 2!H distinguished. (ii) Criminal Trial—

Accused—Conviction toi offence other than charged with— Held : Accused charged with one offence to be competently convicted for committing another offence provided such other offence, not major offence as compared >v>t!i offence with which accused, originally charged, be made out of facts proved, and accused not be prejudiced by conviction for such other offence—'Offence with which accused convicted not flowing from facts constituting original charge and there being also material variation between facts originally alleged and facts proved—Held ; Accused convicted for offence with which not charged with to be said to have been prejudiced—Fact proved not substantially at variance with facts originally alleged and variation in facts alleged and facts proved also not of substantial character— Held : Accused not to be prejudiced merely because of facts proved not tallying wnl> facis .'ripmallv allciied hi all details, i P. 106] A & B PLJ 1980 SC 336 . PLD 1956 SC 44U & 1%-S P Cr. L.I 645 ref. M.. B. A, Sheikh, Advocate for Appellant. Mr, M, S. Farooqui. Advocate tor Respondent. JUDGMENT Sardar Said Muhammad Khan, .1.—The accused-appellant was convicted and was awarded sentence of fine of Rs. 25,U()0/- by the Special Court under Section 6 (5) of Public Office (Misconduct) Ordinance, 1965 ; in default of payment of line the appellant has to undergo rigorous imprison­ ment for a term of six months, 2. The brief fact.- resulting in the present appeal are that the accusedappellant faced trial in the Special Court under the provisions of the Ordinance, known as the Holders of Representative Offices (Trial of Offences) Ordinance, 1978 (hereinafter shall be referred as the Ordinance), on various charges. He was exonerated from all the charges except the charge enumerated as charge No. 2 in the impugned judgment. For the sake of convenience the said charge is reproduced as under : - '2. That the accused after relinquishing the charge of Speaker, did not return the Government vehicle No. AJK 3038 which was on Assembly Pool and repeated communications on the subject also proved fut^'e The vehicle, thereafter, was found damaged iu the year 1977 lying in front of Allied Bank Building Mirpur, the accused then was asked by the authorities to pay au amount of Rs, 22,900/- as cost of vehicle, but he failed to make the payment." 3. As is evident from the charge that the allegation against 'he accused-appellant is that after relinquishing the office of Speaker he failed to return the Government vehicle No. AJK. 3038, which was provided to him as Speaker of the Azad Jammu and Kashmir Legislative Assembly, despite various demands by the concerned authorities. Consequently, the said vehicle, when it was in the use of the accused-appellant, met an accident and was badly damaged. The appellant was asked by the concerned authorities to pay Rs 22,900/- as the price of the vehicle, but tth accused failed to satisfy the demand. 4. The findings of the Tribunal are that the accused-appellant after relinquishing the charge of the Speaker of the Azad Jammu and Kshmir Legislative Assembly retained the Car from 28-6-1975 to 7-11-1975, when he was only a member of the Azad Jammu and Kashmir Legislative Assembly and was not entitled to retain the Government vehicle in that capacity. A perusal of the record reveals that theresh overwhelming evidence in support of the allegation that the accusad-appella nt retained the aforesaid Government vehicle despite the fact that he was no more occupying the office of the Speaker and was only a member of the Azad Jammu and Kashmir Legislative Assembly. A reference may be made to the statement of Mr. Ghulam Ahmed Abbasi and Khalil Ahmed Qureshi, who were examined by the prosecution and the documents exhibited as PC, PG, PL and PN. The allegation against the accusedappellant mentioned above has been amply proved and in fact the learned counsel for the appellant did not assail the factual aspect of the findings of the trial Court so far as those pertain to the aforesaidallegation. The learned counsel simply assailed the impugned judgment on the ground that the accused-appellant could not be convicted for committing misconduct as a Membe of thi Legislative Assembly because he was not charged in terms that he committed misconduct by misusing his power and position as a Member of the Legislative Assembly, rather the learned counsel maintained, he was charged in the capacity of the Speaker of the Legisla­ tive Assembly and Advisor to the Azad Jammu and Kashmir Council and the trial Court has given verdict that he cannot be tried and convicted for misconduct, if any, in the said capacities. The learned counsel has further argued that it was not mentioned in the complaint, filed by the State, that the accused-appellant committed misconduct by misusing his power and position as a Member of the Azad Jammu and Kashmir Assembly. 5. There is no controversy with regard to the fact that the office of the Speaker is not included in the definition of 'Holders of Representative Offices' and that the accused-appellant could also be not indicted for having committed misconduct in the capacity as Advisor to the Azad Jammu and Kashmir Council, but the fact remains that the vehicle in question was retained by the accused-appellant from 28-6-1975 to 7-H-1975, despite various demands for its return. The accused-appellant had no legal justification to retain the said vehicle for his personal use after he had cea^e<J (o b,o|d the office of the Speaker, A perusal of para. (^) of the complaint would reveal that the appellant took the vehicle after he relin­ quished the office of the Speaker without any legal justification. The com­ plaint is not happily worded ; in para. 2 (J) of the complaint is mentioned that by faking away vehicle the accused-appellant, who had been Speaker of the Azad Jammu and Kashmir Assembly and President of the Azad Jammu and Kashmir, made illegal use of his position. It has not been averred in the complaint as to in which capacity the accused-appel­ lant committed the misconduct by misusing his power and position. • It may also be observed that it is paradoxical to say that the accused misused his power or position as Speaker of the Azad Jammu and Kashmir Legis­lative Assembly when he was no more Speaker of the Assembly, as is the case of the prosecution. Thus, th; question which fails for determination is as to whether the conviction of the accused-appellant is bad in law because he was not specifically charged for committing misconduct as a Member of the Asssmbly, desoite the fact that his misconduct as such stands proved by the evidence on record, 6. The learned counsel for the appellant has referred to the cases reported as 'Chief Secretary/Referring Authority v. Sardar Muhammad Abdn! Qayyutn Khan" fPLJ 1983 S (AJK) I4u] and "Sardar Khan Bahadur Khan v. Chief Secretary Azad Govt. of J & K" [PLJ 1983 SC (AJK) 218] in support of his contention that if the evidence travels beyond the charge, it cannot be looked into even if any misconduct stands proved by the evidence. It may be stated at the very outset that both the above mention­ ed cases were under the provisions of Azad Jammu and Kashmir Haiders of Representative Offices (Disqualification) Ordinance, and as such proceedings were of civil nature. Therefore, the view expressed in the aforesaid cases has no relevancy to the case in hand. Moreover, under Section 4 (2) of the aforesaid Ordinance the charge had to be notified in the official Gazette before making reference to the Disqualification Tribunal. It was in view of the aforesaid provision that departure from original charge was held to be violative of law. 7. In the instant case the accused was tried under the provisions of the Ordinance known as the Holders of Representative Offices (Trial of Offences) Ordinance and as such this being purely a criminal case is to be decided according to the norms of procedure prescribed for such trials. In criminal cases, even if the accused is charged with one offence, he can be convicted for committing another offence, if such other offence is made out of the facts proved, it is not a major offenre as compared with the offence with which the accused was originally charged and the accused is not prejudiced by conviction for such other offence. Wnether in the aforesaid eventuality an accused is likely to be prejudiced in a particular case depends upon the particular facts of that case. If the offence for wbich the accused is convictted does not flow from the facts which constituted original charge and there is material variation between the facts originally alleged and the facts proved, the accused may be said to have prejudiced if he is convicted for an offence with which he was not charged. But, if on the other hand, the B facts proved are not substantially at variance with the facts originally alleged and the variation in the facts alleged and facts proved is of not substantial nature, it cannot be said that the accused has been prejudiced by conviction for committing offence merely because facts proved do not tally with the facts originally alleged in all details, A reference may b$ made to "Refique v. State" (1968 P Cr. L J 645) wherein it has been opined that slight variation in facts established from those alleged in charge can­not be said to have caused any prejudice to the accu&ea and conviction is not bad in Saw. In "Muhammad Anwar v. The State" (PLJ 1956 SC 440) it was opined that a conviction can be legally obtained of any offence which appears from the evidence to have been committed, aithough the accused was not expressly charged with it, In i! Nsdir Shsh v. The State" (PLJ 1980 SC 336) it was held that errors or omissions in proceed ngs in stating either the offence or parti­ culars required to be stated in charge or omission in such behalf is not material, unless the accused in fact is shown to have been misL-d by such errors or omissions and failure of justice has occasioned, Such an omis­ sion was held curable under Section 537 of Cr. P. C, 8. Coming to the facts of the instant case it may be observed that the offence for which the appellant has been convicted remains the same whe­ ther he committed it as Member of the Legislative Assembly or in any other capacity as visualized under the relevant provision of law. The facts constituting the charge, i, e., the use of vehicle without entitlement also remains the same. Therefore, the mere fact that the appellant was not specifically charged for having committed the offence in bus capacity as Member the Azad Jammu and Kashmir Legislative Assembly would not render his conviction illegal on the ground that the appellant has beeni, prejudiced The material allegation against the accused remains the same' and mere difference in status in wnich he ooovnitted the offence if, oil course, that status fails with the relevant provision of law cannot be saidj to be a material variation between the facts alleged and facts proved. In the aforesaid view of the matter we repel the argument that the appellant could not be convicted for commitmg the misconduct as member of toe Assembly because he was not charged m that capacity. 9. Coming to the quantum of punishment, we feel that the conviction of the acased carries with it his disqualification for holding any represen­ tative office for ssven yeirs. This aspect of the matter persuades us to reduce the fine imposed by the trial Couit. In the aforesaid view of the matter we reduce the fine imposed on fiie accused-appellant from Rs. 25.000 to 20,000 and direct that the accused-appellant shall deposit the amount in the Government treasury before the 16th of June, 1984, failing which the appellant shall be arrested and he committed to prison to undergo the term of bis imprisonment of six months as ordered by the trial Court. Out of the aforesaid sum Rs. 18,000 shall go to-the Assembly Secretariat, whose vehicle was damaged. The result is that conviction of the accused-appellant is maintained, but quantum of punishment stands altered as indicated above. (TQM) Order accordingly.

PLJ 1984 SC (AJK) 108 PLJ 1984 SC (AJK) 108 [Appellate Jurisdiction] Present : ABDUL MAJEED MALLICK & SHER ZAMAN chqudhry; u GHULAB and six Others—Appellants Versus MUHAMMAD YOUNIS and seven Others—Respondents Civil Appeal No, 28 of 1979, decided on 29-1-1983. (i) Transfer of Property Act (IV of 1882)— S. 91 read with Limitation Act (IX of 1908) —Art. 148—Mort­ gage—Redemption of—Held : Mortgage when paid off or satisfied by usufruct or otherwise extinguished under laws mortgage to be under obligation to retransfer possession to mortgagor at his instance—Mortgagee remaining in possession (even) after satisfaction of mortgage-—Held ; Mere possession from then onwrads not to become adverse and much more to be required to set time running against mortgagor. [P. 1 IQ]A PLD 1965 Lah. 611 ; AIR 1930 Cal. 402; 83 1C 740; AIR 1930 Oudh 13 & AIR 1938 Lah. 675 ref. (ii) Limitation Act (IX of 1908)—

Art. 144-Possession-Suit for—Adverse possession - Plea of- Held: Cause of action being state of facts giving to right of action or to bring action before tribunal to seek redress against infringement of such right, same to relate to definite period when right be injured or infringed—Held further : Cause of action to emanate from acquisi­ tion of right and not vice versa. [P. 111[ E (iii) Adverse possession—

Concept of—Held : Concept of adverse possession being obviously adverse to principle of equity, justice and good conscience, courts to consider same immoral for having its source or origin in brute force—Held further : Plea, being devoid of moral or equitable consideration to be allowed on strength of strict and sound proof. [P. 112]F (iv) Adverse possession—

Onus of proof of—Held : Onus of proof to be placed on de­ fendant attempting to defeat plaintiff's suit for possession on plea of adverse possession—Held further : Defendant already in possession under title permissive possession being best at knowledge as to how and when his possession became adverse, onus to prove suit beyond limitation to be on such person—Limitation Act (IX of 1908)— Art. 144, [P. 112]G (v) Adverse possession— —Proof of—Heid : Implied or actual trespass by itself not to constitute adverse possession—Held further : Trespasser, in order to succeed, to prove strictly necessary conditions constituting adverse possession, [P. Ill]/) PLD 1960 Kar. 428 rel. (vi) Mortgage—

Satisfaction of—Mortgagee—Extinction of title of—Effect of— Held : Mortgagee entering into possession under cover of title of mortgage to be under obligation to retransfer property to its owner on extinction of his title-Held further : Possession of mortgage not to ipso facto turn out to be trespass on satisfaction of mortgage but to continue as permissive poesession and even non-payment of rent not to effect its character,[P. Ill] C (vii) Trespass—

Essentials—Held: One of essentials of trespast being acknowledge­ ment of other person's possessory title or right to immovable property, trespasser entering into property of another person to be possessed of no legitimate right.|[P. 111]5 Raja Muhammad Siddiq, Advocate for Appellant. Kh, Muhammad Yusuf Saraf, Advocate for Respondent. JUDGMENT Abdul Majeed Mailick, J.—This appeal, by leave, arises out of the judgment of the learned single Judge of the High Court, dated 27th December, 1975, whereby the findings of the subordinate Courts were set aside and plaintiff-respondents suit for possession was decreed. 2. Ghulam Muhammad and Nathoo, occupancy tenants, mortgaged their right for Rs. 3GO/- to Ham Din and Sahiboo, ancestors of present defendant-appellants, vide mortgage deed dated 6th Asooj, 1963 Bk. and delivered possession of the suit land to the mortgagees. Ghulam Muhammad died issueless. Nathoo, who succeeded Ghulam Muhammad, also died leaving behind Mst. Bibi Rani, his widow. Mst. Bibi Rani died on 28th Kartak 1998 Bk. On 14th March, 1961, Revenue Officer attested the mutation No. 109, of extinction of occupancy tenancy, in favour of Mst. Said Begum aad Dswan Begum, landlords. Defendant-appellants challenged the mutation in a suit on 1st November, 1962 and claimed the land in their own right, as reversioners of Mst. Bibi Rani, and by adverse possession. Their suit was dismissed on 27th Januiry, 1965. Their successive appeals also failed on 26-10-1967 and 19-7-1969. Meanwhile, Muhammad Shafi, plaintiff-respondent, and Lai Hussain, ancestor of other plaintiff-respondents, purchased the land from Said Begum and Dewan Begum, vide sale 'deed dated 27th Novembsr, 1967. They brought suit for possession on 22ad December, 1969, Ttis defendant-appellants resisted the suit, among others, on the ground of l-mitation. The trial Court accepted the title of plaintiff-respondents, but dismissed the suit for want of limitation. The learned District Judge concurred with the trial Court and rejected the appeal. The learned single Judge of the High Court, however, disagreed with the subordinate Courts and allowed decree for possession on holding the suit within time. 3. Section 62 of the Jammu and Kashmir Tenancy Act, which was in force in pre-independence period, provided that an occupancy tenant, whose rights were subject to mortgage, when died without heir to succeed under section 67 of the Act, the right of mortgage shall also extinguish. In the instant case mortgagor-tenants died without any heir to succeed their tenancy. Mst. Bibi Rani also died on 28th Kartak 1998 Bk. Con­ sequently, tenancy and mortgage extinguished simultaneously and suit land reverted to the landlords. But mortgagees remained io possession. The present controversy has arisen om of this position, 4. A preliminary argument of the learned counsel for the appellants is that on the death of mortgagors and extinction of tenancy the suit land reverted to the plaintiffs, as legal representatives of deceased tenants. Therefore, they shall be considered as mortgagors for the purposes of settlement of the controversy, ir support at this suggestion oar attention was invited to a case of ! 'Or. Arsi&d Mafamsod c. Dr. Mamtaz Hussain" (P. L, J. 1974 Lah. 414). The term "legal representative" as defined in section 2 (1!) C. P, C. means "a person who its law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party-sues or is sued in a representative character, the person on whom ihe estate devolves on the death of the party so suing or sued". A close st-,:dy of this definition reveals that plaintiffs do not fail within ihe scope of Segal representatives of deceased mortgagors, by any standard. The fact of the matter is that tenancy and mortgage extinguished, as contemplated under section 62 of the Tenancy Act, bj .iriue of absence of fceir to succeed the tenancy. Moreover, plaintiffs, who were landlords, have not; acquired the tenancy rights by succession, act it has devolved on them as legal representatives, la fact the tenancy rights emanated iur the proprietary title of landlords accompanied by certain conditions Consequently on non-fulfilmint of such conditions it reverted to the source of its origin and merged in it under the statute. In other words, the landlords re-acquired interest in the land by virtue of their own title, The contention is, therefore, repelled. 5. In the case of a mortgage with possession the limitation for redemption or possession is sixty years, und^r Article 1.48 of the Limitation Act, The consensus of opinion ii that when a mortgage is paid off, or satisfied by a usufruct, or extinguished otherwise under law. mortgagee is under an obligation to retrattster the possession to the mortgagor at his ^instance. Where a mortgagee remains in possession after the satisfaction of 'the mortgage, mere possession from then on#ards, does not become adverse. Much more is required to set the time running against the mortgagor. In support of fhis opinion reference may be made to ''Altai v. Mardsna and others" (PLD 1965 Lah, 61 i), "Keshab Lai Goswami v. Bhola Natb Gangoadhya and others' i A. 1 R. 1930 Cal . 402), "Gobind Ram and others y. Musammat Ram Ko?r and others'' (83 1C 740), '-Abid All Khaa v. Har Pershad and another (AIR 1930 Qudh 13) and '-Court of Wards r. Devi Dawahf' (A. I, R. 19j8 Lah. 67.V), d. Next it was argued that on extinction of the mortgage the posses­ sion of mortgagees, automatically changed Us character as trespass ; from then onwards, mortgagees occupied me land as trespasser. Consequently their continuous possession, over a period of-more than twelve years, constituted adverse possession. Reference was made to "Jumo Khan y, Ramzani" iP, L. D. J959 K.ar. 60). "Suleman and 3 others v. CiKtodian, Evacuee Property, West Pakistan Lahore and 2 others" (P. L D. 1971 Lah. ??) and "Sahib/ada Sharaf Sultan & others r. Brig. Shahnada Sher Muhammad Jan" {P. L D. l%j Lah. 606). 7, The word 'Trespass' as defined 'in Strand's Judicial Olctieaary, fourth Edition, nieaas ; "Trespass, (!) " 'Trespass' signifies any transgression of the law uader treason, felony, or raispnsion of either", (2) ' ; A trespass in an injury committed with violence : and this violence, though none is actually used, where she injury is of a direct aad immediate kind, sod committed oa the person, or ^ie and corporeal property, oi the piaiatiff. Of actual violence, ao assault and battery is an instance: of implied, a peaceable but wrongful entry upon the plaintiff's land," In presence of the above given definition, the trespass suggested in this case if at a!! if was a trespass may be termed as implied trespass. But ia that case too, it was essential to show that entry or possession was wrongful one. 8. One of the essentials of trespass is the acknowledgement of other person's possessory title or right to the immovable property. A trespasser is not possessed of legitimate right when he enters into the property of another person Contrary to this a mortgagee enters into possession under the cover of title of the mortgage,. On extinction of his title, he is under an obiigatioa to retransfer the property to its owner. The only difference is that he loses his right by virtue of termination of citie. The distinctii between the two is obvious. In our opinion on satisfaction of the mortgage from then onwards, the possession of mortgagee does not ipso facto turn out to be a trespass. It shall continue as permissive possession. Even non-payment of rent will not effect its character. The other view can be, that on elimination of rigrst of mortgage, possession of mortgagee, techni­ cally becomes a trespass. But again implied trespass or actual trespass by itself, like mere possession, would not constitute adverse possession Other allied conditions are also to be fulfilled to constitute adverse possession In order to succeed, a trespasser whether actual or by implication, iike other cases, has to prove stnctiy the necessary conditions constituting the adverse possession. We therefore uphold the view expressed in Haji Sber Muhammad's case (P. L. D 1960 Kar, 428). 9. The trial Court held that limitation started running against the plaintiff from the time of acquisition of title, under Article 144. In its view the period of twelve years started from the time of extinguishment of tenancy and the suit was dismissed, on this count, as time barred. All the Courts are in agreement that the Article 144 is attracted in this case. Difference opinion occurred only in respect of the point of commencement of the limitation. The subordinate Courts were of the view Chat on termination of tenancy and extinction of the right of mortgage, the posses­ sion of mortgages, ipso facto, changed its nature into trespass and from then onwards they remained in possession as trespasser. It was held that limitation started running immediately on. acquisition of right to sue for possession. 10. "Acquisition of right" and "cause of action" are not one and the same thing. Unless there is a right, there is no cause of action, Acquisi tion of right precedes to a cause of action. In restricted sense 'cause of action" means state of facts which give rise to a right of action or to bring an action before a tribunal to seek redress against the infringement of such right. Again, cause of action and accrual of cause of action relate to a definite period when 3 right is injured or infringed. Cause of action emanates from acquisition of right, and not vice versa. On this premises of proposition, we 'find that approach of the subordinate Courts was erroneous. 11. We have examined the scope of the terras "acquisition of right" and "cause of action". As stated earlier a!! the Courts are in agreement that litnitauoji in the case is controlled by Article 144. The time of com­ mencement of limitation is given in coiuron three of the schedule. In this column it is laid down that under Article 144, the limitation in suit for ' possession, begins from fhs time of adverse possession of the defendant. Therefore, under law limitation for bringing the suit for possession started running from the lime of adverse possession of defendant-appellants and not from the time of acquisition of title or interest of dents. 12. Next we come to the question of adverse possession. The rule of adverse possession «• based on the principle of "might is right". Use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of equity, justice and good conscience. Superior Courts of the State and Pakistan have considered it immoral for having its source of origin in brute force. The history of the concept is traced to premedieval times. But with the passage of time and organisation of society into state of rule of law, it gained mandate of law to set at rest the status of long time possessions, particularly in absence of claims of true owners of properties, the constituent conditions of adverse possession are that it must be actual, visible exclusive, continuous and hostile to the knowledge of the actual owner. The plea of adverse possession, being devoid of moral and equit­ able consideration, is allowed on the strength of strict and sound proof. If any one of the constituent conditions is lacking in evidence the plea is out rightly rejected. It is for this reason that Courts have always insisted on cogent and positive evidence in support of adverse possession. 13. The other legal aspect of adverse possession is that whenever defendant attempts to defeat the plaintiff's suit for possession on the plea of adverse possession, onus of proof is placed on such defendant. Like­ wise, in a suit for possession where plaintiff acquires title in suit property when defendant is already in possession under a right, plaintiff is under an obligation to prove his title and nothing more. Defendant, who defends his possession on the ground of adverse possession or limitation, onus to prove that suit is beyond limitation, is on such defendant in the light of provisions of Article 144 of the Limitation Act. The legislature very wisely incorporated, that defendant who was already in possession under a title or permissive possession, is best at knowledge as to how and when his possession became adverse. This leads to the conclusion that Article 144 envisages (/) commencement of limitation at the time when defendant's possession bscomss and adverse and (//) that onus lies on defendant in order to defeat the suit, as beyond time. 14. Another and important aspect of the case was ignored altogether. This aspect is that mutation relating to extinction of tenancy, free from the right of mortgage was attested on 14th March, 1961. The ladies, to whom the land reverted, became alive to their right on attestation of the mutation. On the other hand present defendant-appellant challenged the mutation and title of the proprietors, in a suit instituted on 1st November, 1962. fn this suit among othere, they raised the plea of adverse possession, in para. 5 of the plaint, Ex. P. A. Their claim of adverse possession relating to previous period was rejected by all the Courts. Thus defendant-appellants were clearly estopped from claiming adverse possession with effect from the time of death of Mst. Bibi Rani (1998 Bk.). This plea is barred as res judicata. It is undisputed that previous suit was between the same parties and in respect of the same subject matter. Section 11 ofC. P. C. as such fully apply to the case. In the circumstances it is held that limitation started running with effect from 1st November, 1962, the date of institution of defendants suit. The present suit having been instituted on 22-12-1969 is, therefore, obviously within time. In view of the aforesaid circumstances the appeal being devoid of force is dismissed with costs. (TQM)

Appeal dismissed. THE END